Prosecution appeal from the dismissal of charges against the defendant; Suppression of the victim’s identification of defendant; Whether a photographic identification procedure was so suggestive it violated due process; People v. Woolfolk; People v. Kurylczyk; Principle that a one-person confrontation is not per se a due process violation; People v. Hallaway; People v. Winters; Totality of the circumstances; Neil v. Biggers; People v. McAllilster; People v. McRaft; Comparability of a single-photo identification to on-the-scene identification; People v. Libbett; Stovall v. Denno; Carrying a concealed weapon (CCW)

The court held that the trial court improperly suppressed the victim’s identification of the defendant because, while a single-photo identification is always suggestive, the totality of the circumstances here showed that the identification procedure was not impermissibly suggestive. Thus, it reversed the order dismissing the charges against defendant, and remanded. The victim saw the assailant twice – for 3 seconds approximately 15 minutes before the assault, and then again for 6 or 7 seconds during it. The assailant was about 2 feet away from him during the robbery. “The victim testified that he got a good look at the assailant’s face. It was dark at the time of the assault, but the victim testified that he was able to look at the assailant’s face, clothing, and gun.” He consistently described the assailant as young, about the same size as the victim (5 feet 9 inches tall), dark-skinned, and wearing a black hood. He initially indicated that he and the assailant were the same weight (about 145 pounds) but an officer testified the victim later stated that his assailant was 200 pounds. Even “with this discrepancy, the victim indisputably had the opportunity to observe the assailant, if only for a short time.” He also testified that “during the brief encounter, he was able to note the assailant’s size, age, skin-tone, clothing color, the color and kind of gun being used, and that the assailant held the gun in his right hand.” There was no dispute that his description “matched defendant. The description was general and could apply to many people, but was in fact accurate.” The victim identified the person in the photo as his assailant within a few seconds of seeing it, which suggested some certainty. He had an emotional response upon seeing the photo, immediately getting tears in his eyes and stating that the photo was that of the assailant. He never failed to identify defendant and never identified anyone else. Finally, “the identification occurred approximately a half hour to an hour after the crime.” The officer showing him the photo asked “was this him” but did not say that the photo was of the assailant or that the person was under arrest, and nothing in the photo indicated that the person was under arrest. The court concluded that in this case, the showing of a single photo “was comparable to an on-the-scene identification.”