People v. Thomas
| Decision Date | 26 January 2017 |
| Docket Number | No. 328534,328534 |
| Parties | PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. LAWRENCE THOMAS, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
UNPUBLISHED
Wayne Circuit Court
Before: BECKERING, P.J., and SAWYER and SAAD, JJ.
A jury convicted defendant, Lawrence Thomas, of first-degree felony murder, MCL 750.316(1)(b), two counts of assault with intent to commit murder, MCL 750.83, felon in possession of a firearm, MCL 750.224f, escape from lawful custody, MCL 750.197a, and possession of a firearm during the commission of a felony, MCL 750.227b. The trial court sentenced defendant to life imprisonment for the felony-murder conviction, and concurrent prison terms of 25 to 40 years for each assault with intent to commit murder conviction, two to five years for the felon-in-possession conviction, and one year for the escape from lawful custody conviction, to be served consecutive to a two-year term of imprisonment for the felony-firearm conviction. Defendant appeals as of right, and we affirm.
Defendant's convictions arise from a shooting incident during the early morning hours of August 17, 2014, at Chevelles Bar & Grill ("Chavelles") on the west side of Detroit. At closing time, after the bar's lights were turned on signaling that it was time to leave, Kenneth Davis and his friends began to make their way toward the entrance. According to witnesses at trial, defendant grabbed Davis's designer glasses off his face. Defendant then produced a gun and fired into the crowd. Davis was grazed by a bullet. Jessica Porter was fatally shot in the head. Latris Rucker was also shot, but recovered from his injury.
The defense theory at trial was that defendant was misidentified as the shooter. Neither Davis nor the Chevelles bartender, Chaloea Smith, were able to identify defendant in a photographic lineup, but they both identified defendant as the shooter at a subsequent corporal lineup and at trial.
Defendant argues that the trial court erred in denying his motion to suppress Davis's and Smith's identification testimony. Defendant notes that Davis and Smith both failed to identify him as the shooter in six-person photographic arrays, but that Smith identified him in a crowd photo that was taken during the event at Chevelles, and that Smith and Davis both subsequently identified him as the shooter at corporeal lineups. Defendant does not dispute that he was at the club on the night of the shooting, nor did he seek to suppress Smith's identification of him in the crowd photographs. Rather, defendant argues that the corporeal lineups were impermissibly suggestive identification procedures because he was the only person in the lineups whose photo was included in the photo arrays that were previously viewed by Davis and Smith. Defendant also contends that the lineups were impermissibly suggestive because the Chicago Bulls jersey that he was wearing during the lineups linked him to the shooter, who was wearing a Chicago Bulls baseball cap inside Chevelles. The trial court denied defendant's motion to suppress after conducting a Wade1 hearing. We affirm.
We review for clear error a trial court's decision on a motion to suppress identification evidence, but review any underlying legal issues de novo. People v Kurylczyk, 443 Mich 289, 303; 505 NW2d 528 (1993); People v McDade, 301 Mich App 343, 356; 836 NW2d 266 (2013). "A lineup can be so suggestive and conducive to irreparable misidentification that it denies an accused due process of law." People v Hornsby, 251 Mich App 462, 466; 650 NW2d 700 (2002). To successfully challenge an eyewitness identification on due process grounds, a criminal 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.' " People v Williams, 244 Mich App 533, 542; 624 NW2d 575 (2001), quoting Kurylczyk, 443 Mich at 302. "If a witness is exposed to an impermissibly suggestive pretrial identification procedure, the witness' in-court identification will not be allowed unless the prosecution shows by clear and convincing evidence that the in-court identification will be based on a sufficiently independent basis to purge the taint of the illegal identification." People v Colon, 233 Mich App 295, 304; 591 NW2d 692 (1998).
As this Court has stated on more than one occasion, "[t]he fact that a defendant whose photograph had been shown in a previous photographic show-up is the only participant in a subsequent lineup does not render the lineup procedure improper." People v Currelley, 99 Mich App 561, 568; 297 NW2d 924 (1980); see also People v Solomon, 82 Mich App 502, 507; 266 NW2d 453 (1978). Smith indicated that she based her identification of defendant at the corporeal lineup on having seen him at the club on the night of the shooting. She testified that she clearly saw his profile while he was exiting the bar and shooting into the air, and that she recognized him as he exited the bar because she saw him full in the face earlier in the evening. Likewise, Davis stressed that he recognized defendant in the lineup because he had looked him "dead in the eyes" as defendant grabbed his glasses. Both witnesses testified at the preliminaryexamination2 that they did not see defendant's photograph among those shown them by Officer Holmes. Given Smith's and Davis's testimony that they identified defendant in the corporeal lineup based on their observation of him at Chevelles, and their insistence that they did not recognize him in the photographic array, defendant has no basis for contending that the prior photographic array influenced the identification witnesses.
We have also held that it is not necessarily impermissibly suggestive when an accused wears the same clothing in a lineup as he or she wore when apprehended, Currelley, 99 Mich App at 567, even when the defendant was apprehended shortly after the crime and is wearing the same clothes in the lineup that he wore when he committed the crime, People v Morton, 77 Mich App 240, 243-244; 258 NW2d 193 (1977). Wearing the same clothes at arrest and at a subsequent lineup "will not vitiate the lineup, even where the clothing serves to draw attention away from other lineup participants." People v Jones, 44 Mich App 633, 637; 205 NW2d 611 (1973) (). To show a deprivation of due process, the defendant must show that the characteristic feature or clothing that distinguished defendant from other members of the lineup was significant to the witness making the identification. People v See Holmes, 132 Mich App 730, 746; 349 NW2d 230 (1984); see e.g., People v Hutton, 21 Mich App 312, 331; 175 NW2d 860 (1970) (). "[W]here there is no record evidence that identification of the defendant depended substantially on the clothing worn at the time of the offense, and where the witness had sufficient time to observe the defendant[,]" no impermissible suggestiveness will be found. Currelley, 99 Mich App at 567, citing People v Gunter, 76 Mich App 483; 257 NW2d 133 (1977).
Defendant has failed to show that his wearing a Chicago Bulls jersey in the lineup was a distinguishing feature that was significant to and unduly influenced Smith or Davis. Defendant was wearing the jersey when he was arrested on a parole violation nearly two weeks after the shooting, but he was not wearing it on the night of the shooting. The crowd photos from the bar taken on the night of the shooting depict several persons wearing team baseball caps, including three Chicago Bulls caps. Smith said at the preliminary examination that defendant was wearing a red and black cap, but she identified it by its colors, and not specifically by its team affiliation. Davis agreed at the preliminary examination that defendant had on a red Chicago Bulls hat at the club and a Chicago Bulls jersey at the lineup, but said that he could not remember if the jersey defendant wore during the lineup was red because he "wasn't really paying attention to his clothes; [he] was really paying attention to his face." At the corporeal lineup, both Smith and Davis identified defendant by his number, only afterwards clarifying their pick by referencing the Chicago Bulls jersey that defendant was wearing.
Analyzing the relevant factors in this case, we conclude that the trial court did not err in denying defendant's motion to suppress the lineup identification. As we indicated above, Smith testified at the preliminary examination that, although she did not see defendant take Davis's glasses and shoot the victims, she clearly saw his profile while he was exiting the bar and shooting into the air, and she recognized him from having seen him full-face earlier in the evening. Davis said defendant looked him in the eye as he took Davis's glasses off his face. Asked if he and defendant were...
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