People v. Davis

• Citation: 241 Mich. App. 697,617 N.W.2d 381
• Decision Date: 19 September 2000
• Docket Number: Docket No. 208823.
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas A. DAVIS, Defendant-Appellant.
• Court: Court of Appeal of Michigan (US)

617 N.W.2d 381

241 Mich. App. 697

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas A. DAVIS, Defendant-Appellant.

Docket No. 208823.

Court of Appeals of Michigan.

Submitted March 15, 2000, at Detroit.

Decided July 18, 2000, at 9:00 a.m.

Released for Publication September 19, 2000.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Jeffrey Caminsky, Assistant Prosecuting Attorney, for the people.

Carl Christoph, Detroit, for the defendant on appeal.

Before: RICHARD ALLEN GRIFFIN, P.J., and HOLBROOK, JR., and J.B. SULLIVAN¹, JJ.

PER CURIAM.

Following a bench trial, defendant was convicted of armed robbery, M.C.L. § 750.529; MSA 28.797. He was sentenced to three to ten years in prison as an habitual offender, fourth offense, M.C.L. § 769.12; MSA 28.1084, and appeals as of right. We affirm.

Defendant's conviction arose out of a robbery in a Little Caesar's parking lot at approximately 6:00 P.M. on December 8, 1996, in the city of Detroit. As complainant Yvette Williams carried her pizza to her car, which was parked in the first space next to the restaurant, she felt a tug at her purse. As she opened the car door and was entering her car, she turned around and was face to face with a man holding a knife and demanding money. His face was approximately one foot from hers. Complainant gave him money from her purse, but had four to five minutes to look at his face because he then asked her for additional money, which she got from her pocket, asked about her earrings, asked and remarked about how scared she was, and then asked for a piece of her pizza. Meanwhile, off-duty police sergeant Jadie Settles saw the robbery in progress from his vehicle, drove into the parking lot, and confronted the suspect, who was twelve to twenty feet from him. The suspect threw his knife to the ground and ran from the scene.

On two subsequent occasions, one a few days after the incident and another approximately one month later, complainant saw the suspect in the area, but she was unsuccessful in getting police to respond. Then, three months later, complainant again spotted the suspect in another area restaurant; she called the police, and defendant was arrested at the scene. Six months later, immediately before the start of trial, Settles told the prosecutor that defendant "looks like the same guy." At trial, both complainant and Settles identified defendant as the perpetrator of the robbery. Defendant admitted that he gave a bogus name and address to the police at the time of his arrest, but denied any involvement in the crime and claimed that the evidence was insufficient to convict him because he did not match the physical descriptions given to police by complainant and Settles on the night of the incident. The trial court found that the differences in the description of defendant given by complainant and Settles were not significant enough to raise a doubt regarding their positive identification of defendant.

On appeal, as at trial, defendant raises only the issue of identification evidence, again arguing that it was insufficient to support his conviction of armed robbery. We disagree. When determining whether sufficient evidence has been presented to support a conviction, we view the evidence in the light most favorable to the prosecution to determine if a rational trier of fact could have found that the essential elements of a crime were proved beyond a reasonable doubt. People v. Johnson, 460 Mich. 720, 722-723, 597 N.W.2d 73 (1999). The credibility of identification testimony is a question for the trier of fact that we do not resolve anew. People v. Daniels, 172 Mich.App. 374, 378, 431 N.W.2d 846 (1988). Moreover, this Court has stated that positive identification by witnesses may be sufficient to support a conviction of a crime. See People v. Malone, 193 Mich.App. 366, 371, 483 N.W.2d 470 (1992), aff'd. on other grounds 445 Mich. 369, 518 N.W.2d 418 (1994).

Defendant first argues that reliable identification was impossible because the perpetrator escaped. Defendant cites no authority for this claim, thereby abandoning it on appeal. People v. Battle, 161 Mich.App. 99, 101, 409 N.W.2d 739 (1987). Defendant further claims that Settles' identification of defendant to the prosecutor right before the start of trial was "suggestive and invalid" because defendant "was on trial for the offense and there were no other suspects." Even if defendant had preserved this issue by a motion to suppress Settles' identification testimony, see People v. Lee, 391 Mich. 618, 626-627, 218 N.W.2d 655 (1974), we would not reverse.

Defendant relies on United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and People v. Anderson, 389 Mich. 155, 205 N.W.2d 461 (1973). The specific issue in those cases was whether a suspect was entitled to the presence of counsel at state-compelled, pretrial identification confrontations such as corporeal lineups or show-ups, Wade, supra at 228-230, 87 S.Ct. 1926, or at photographic lineups, Anderson, supra at 186-187, 205 N.W.2d 461, situations significantly distinguishable from the case at bar wherein the witnesses identified defendant on the basis of having seen him commit the crime and, in the case of complainant, having additionally seen him in public on three subsequent occasions.

Nonetheless, the Wade and Anderson Courts discuss at great length the unreliability of eyewitness identification and the potential thereby for misidentification: "the annals of criminal law are rife with instances of mistaken identification ... [t]he identification of strangers is proverbially untrustworthy ... [t]he influence of improper suggestion upon identifying witnesses probably accounts for more miscarriages of justice than any other single factor ... [s]ugestion can be created intentionally or unintentionally [and] the dangers for the suspect are particularly grave when the witness' opportunity for observation was insubstantial." Wade, supra at 228, 229, 87 S.Ct. 1926. "[W]e find there are serious problems concerning the accuracy of eyewitness identification and that real prospects for error inhere in the very process of identification completely independent of the subjective accuracy, completeness or good faith of witnesses." Anderson, supra at 180, 205 N.W.2d 461; see id. at 172-180, 205 N.W.2d 461.

In addition to defendant's specific claim regarding Settles'"suggestive" identification before trial, defendant relies on the statements from Wade and Anderson regarding the unreliability of eyewitness testimony to also generally challenge both Settles' and complainant's in-court identification of him as the perpetrator. Defendant is not arguing merely that Settles and complainant lack credibility. Rather he is arguing that, when the issue is identification, eyewitness testimony is simply too unreliable to support a conviction notwithstanding the credibility of the witnesses. We utilize the same analysis for both of defendant's claims.

In People v. Gray, 457 Mich. 107, 577 N.W.2d 92 (1998), a rape victim tentatively identified the defendant in a corporeal lineup and then later confirmed her identification when a police officer came to her home and, allegedly to allay her fears, told her a suspect had been arrested and showed her a photograph of the defendant. The Court found that the officer's action was impermissibly suggestive, but found that there was an independent basis for the victim's identification of the defendant. The Court first noted that the remedy for an unduly suggestive identification procedure is suppression of the in-court identification unless there is an independent basis for its admission. Id. at 114, n. 8, 577 N.W.2d 92; see Wade, supra at 239-240, 87 S.Ct. 1926; People v. Kurylczyk, 443 Mich. 289, 303, 505 N.W.2d 528 (1993) (Griffin, J.). The Court noted that the independent-basis inquiry is a factual one, and that the validity of a victim's in-court identification must be viewed in light of the totality of the circumstances. Gray, supra at 115, 577 N.W.2d 92, citing Neil v. Biggers, 409 U.S. 188,199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).

The Court then reiterated the factors, originally set forth in the nonbinding case of People v. Kachar, 400 Mich. 78, 252 N.W.2d 807 (1977), that a court should weigh in determining if an independent basis exists for the admission of an in-court identification: (1) prior relationship with or knowledge of the defendant; (2) opportunity to observe the...