People v. Gray
| Decision Date | 05 May 1998 |
| Docket Number | Docket No. 106442,No. 13,13 |
| Citation | 577 N.W.2d 92,457 Mich. 107 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Allen Leroy GRAY, Defendant-Appellant. Calendar |
| Court | Michigan Supreme Court |
Defendant pleaded nolo contendere to one count of kidnapping and two counts of CSC III. Defendant's plea was conditioned on his right to appeal several issues, including the trial court's refusal to preclude the victim's in-court identification of him. The propriety of the identification is now before this Court.
On April 6, 1993, at approximately 4:30 a.m., the victim drove to the Econo Foods supermarket in Iron Mountain, Michigan, in order to pick up doughnuts for the guests of the Super Eight Motel. After coming out of the supermarket, the victim was abducted by a man hiding in the back seat of her car. The man brandished a knife and instructed the victim to drive to a secluded spot along a dirt road, where he ordered her to climb into the back seat. The man then forced the victim to disrobe, to kiss him on the lips, and to perform oral sex. Shortly thereafter, the headlights of a police car appeared behind the victim's car. The man instructed the victim to put her shirt back on, climb back into the front seat, and drive away from the area.
After driving around for a while, the man instructed the victim to park along a residential street in Iron Mountain and once again had her climb into the back seat. This time he forced the victim to perform oral and vaginal intercourse. He then had her drive to a point near a gas station where he got out of the car. The victim returned to the Super Eight Motel and reported the incident to the police. She described her attacker as an unshaven, dark complexioned white man of medium build, about six feet tall, forty to fifty years old, with uncombed, dirty dishwasher blond hair and odd looking lips. He had been drinking, smelled bad, and smoked a darker than normal cigarette.
The defendant ultimately became the prime suspect. The police took defendant into custody and arranged a corporal lineup. 1 The victim tentatively identified the defendant as her assailant at the lineup. She made the following statement after the lineup:
I was called at 2:00 p.m. to come down to look at a line-up. I looked at eight people. Number six looked like him, but I can't be sure. His eyes and face fit, but his lips were what threw me off. His eyes really look like the eyes I remember. I can't be positive, but there is something about his eyes and face.
The police arrested and charged defendant with one count of kidnapping 2 and two counts of third-degree CSC 3 after the lineup. Later that evening, Officer Revord went to the victim's home to inform her that the police had arrested a suspect. During the visit, Officer Revord showed the victim a single photograph of the defendant. After seeing the photograph, she became sure that defendant was the one who attacked her. As she testified at the hearing on defendant's motion to suppress the identification:
When I was relaxed after the line-up and I was at home, Officer Revord came over and he showed me the picture and it was at that time that I had no doubts that it was him.
The trial court denied a motion by defendant to prohibit an in-court identification of defendant by the victim, holding that although the use of the photograph by Officer Revord was improper, there was a sufficiently independent basis for the victim to identify Mr. Gray at trial. Pursuant to his plea agreement, defendant appealed the denial of his motion. The Court of Appeals declined to overturn the trial court, stating that the trial court's conclusion that there were sufficiently independent grounds for an in-court identification was not clearly erroneous. 4 We granted leave to appeal.
Defendant challenges the photographic identification procedure used by Officer Revord. He argues that Officer Revord impermissibly suggested to the victim that defendant was her assailant when he showed her a single photograph of defendant and told her that he was the man they had arrested in connection with her assault.
A photographic identification procedure violates a defendant's right to due process of law 5 when it is so impermissibly suggestive that it gives rise to a substantial likelihood of misidentification. People v. Kurylczyk, 443 Mich. 289, 302, 505 N.W.2d 528 (1993); Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968). In People v. Anderson, 389 Mich. 155, 178, 205 N.W.2d 461 (1973), we noted that an improper suggestion often arises when "the witness when called by the police or prosecution either is told or believes that the police have apprehended the right person." Moreover, when "the witness is shown only one person or a group in which one person is singled out in some way, he is tempted to presume that he is the person." Id.
In the present case, Officer Revord went to the victim's residence, informed her that they had arrested the defendant, and showed her a single color photograph of the defendant. The display of the single photograph, combined with the statement that this was the man the police had arrested for the assault, was highly suggestive. To begin with, the exhibition of a single photograph "is one of the most suggestive photographic identification procedures that can be used." Sobel, Eyewitness Identification (2d ed.), § 5.3(f), p. 5-42. This was accompanied by a statement from Officer Revord implicating the defendant as the assailant. Thus, the photographic showing in this case presented the exact situation warned of in Anderson: The defendant was singled out by showing only one photo to the victim, and then the victim was reassured that defendant was her assailant because of the statement by a police officer that this was the man the police believed was her assailant.
Although the suggestive photographic identification procedure in this case occurred after a legitimate corporal lineup, this case still presents the danger that once the identify of the victim's assailant was suggested to her through the photographic identification procedure, she "may be likely to base later identifications of the suspect upon that photograph, rather than on [her] recollection of the crime." Kurylczyk, 443 Mich. at 321, 505 N.W.2d 528 (opinion of Brickley, J.). As the United States Court of Appeals for the Second Circuit explained in Jarrett v. Headley, 802 F.2d 34, 41 (C.A.2, 1986):
When the witness's initial identification of the accused has been tentative and his later identifications are "positively certain," there may be a question as to whether the newfound certainty resulted from impermissibly suggestive law enforcement procedures. Solomon v. Smith, [645 F.2d 1179, 1185 (C.A.2, 1981).] In Solomon, we concluded that the witness's certain in-court identification of the petitioner should have been excluded because her initially tentative identification was followed by, inter alia, repeated showings of the selected photograph in isolation, a courtroom showup, a lineup in which the witness identified someone else as the culprit, and eventually a highly suggestive lineup from which the witness selected the petitioner. We reached the same conclusion in Dickerson v. Fogg, 692 F.2d 238, 241-42, 244-45 (C.A.2, 1982), where the initially tentative identification was transformed into a positive one by the combined effect of the police officer's conducting a showup, pressuring the witness into taking a second and third look at the suspect after his initial tentativeness, and then arresting the suspect in the witness's presence. [Emphasis added.]
Here, the victim tentatively selected the defendant from the lineup as her assailant, but her identification was something less than one-hundred percent positive. Defendant correctly argues that the victim claimed to become positive of her identification only after she was exposed to the second suggestive identification procedure. Moreover, defendant contends that the victim's subsequent testimony about the first identification procedure was tainted by the second suggestive procedure. Thus, it is possible that the victim's "newfound certainty" about her identification resulted from the impermissibly suggestive law enforcement procedures. 6
We also note that Officer Revord testified at the suppression hearing that he had not intended to show the photograph to the victim in order to identify the defendant. Rather, he stated that he went over to the victim's house to let her know they had arrested the suspected assailant, so that the victim "could begin to rest a little easier." When Officer Revord was at her house, he showed the victim a picture of the defendant he happened to have in his pocket because it "[j]ust kind of went with the name, you know."
While Officer Revord's intentions may not have been malicious, his subjective intent does not eliminate the possibility of a substantial likelihood of misidentification. "[O]nly the effects of, rather than the causes for, pre-identification encounters should be determinative of whether the confrontations were unduly suggestive." Thigpen v. Cory 804 F.2d 893, 895 (C.A.6, 1986). 7 Therefore, even if Officer Revord truly only meant to placate the victim's fears by showing her a photograph of the defendant, his actions nonetheless amounted to a highly suggestive identification procedure. 8
Our inquiry does not end once we have found an invalid identification procedure. The second step in our analysis is to determine whether the victim had an...
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