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Opinion Date: 08/27/2013
e-Journal Date: 09/03/2013
Full Text Opinion

Practice Area(s):   Criminal Law

Issues: Whether the trial court properly permitted witness-P's in-court identification of defendant as the shooter; Whether defendant should have been able to examine P at the evidentiary hearing to test the validity of the photo lineup; People v. Kurylczyk; People v. Muro; People v. Gray; People v. Barclay; Effect of the fact P may have been "high" during the photo lineup; People v. Lemmon; People v. Davis; Whether defendant's constitutional rights were violated when the trial court denied him the opportunity to examine P during the evidentiary hearing; People v. Kelly; People v. Watson; People v. Lee; Whether defendant was denied due process of law when the trial court precluded evidence that victim-C was involved in an illegal prescription drug business and that another individual had a motive to shoot her; People v. Cain; Right to present a defense; People v. Hayes; People v. Unger (On Remand); Holmes v. South Carolina; People v. McCracken; People v. Kent; Chambers v. Mississippi; Ineffective assistance of counsel for not properly establishing a foundation to admit evidence for a defense theory of third-party culpability; People v. Russell; Assault with intent to do great bodily harm less than murder (AWIGBH)
Court: Michigan Court of Appeals (Unpublished)
Case Name: People v. Wallace
e-Journal Number: 55356
Judge(s): Per Curiam – Stephens, Wilder, and Gleicher

Concluding that the photo lineup was not impermissibly suggestive and that the record clearly established there was an independent basis for witness-P's in-court identification, the court held that the trial court did not err in allowing her in-court identification at trial. The case arose out of a shooting. P went to the police and informed Officer M that defendant was the shooter. Defendant claimed the trial court erred in permitting P's in-court identification of defendant as the shooter. Police prepared three photo arrays for P. The first two did not have defendant's picture, but the third one did. P picked defendant out of the third array. Defendant contended that he should have been able to examine P at the evidentiary hearing to test the validity of the photo lineup. The trial court heard M's testimony that she prepared the third photo array, with defendant's picture in it, based on the facial characteristics of the suspect, which were described by P, as well as the approximate age of the suspect. M testified that "the computer generated the photos based on this information, which included that the suspect was a black male with short braids and facial hair. The trial court observed the photo array, found it to be extremely fair," and concluded that P's testimony was not necessary at the hearing and would be evaluated instead by the trier of fact. The court held that the trial court did not abuse its discretion in making this determination. The men chosen for the lineup looked "strikingly similar to defendant," and there was nothing about his photo that made it stand out more than the others. Further, both the trial court and defense counsel had access to a video and written transcript of the photo lineup identification during the evidentiary hearing. Thus, defendant could show no particular necessity for acquiring P's testimony at the hearing, which focused principally on whether the photo lineup was suggestive. His assertion that P's testimony would have established that she was high during the photo lineup identification may be true, but the fact that she may have been high was "a consideration for the trier of fact in weighing her identification testimony - it does not go to its admissibility, which was the purpose of the hearing." The court held that viewing the totality of the circumstances surrounding the photo lineup, "the trial court did not clearly err in finding that the procedure followed by the officer in charge was not so impermissibly suggestive that it gave rise to a very substantial likelihood of irreparable misidentification." Defendant's convictions of second-degree murder, AWIGBH, felonious assault, and felony-firearm were affirmed.

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