Suppression of the victim’s identification of defendant; Whether a photographic identification procedure was so suggestive it violated due process; Perry v. New Hampshire; People v. Gray; Simmons v. United States; Stovall v. Denno; Reliability; Manson v. Brathwaite; Totality of the circumstances; People v. Kurylczyk; Neil v. Biggers; Whether there was a sufficient independent basis for the victim’s in-court identification; People v. Kachar

In an order in lieu of granting leave to appeal the Court of Appeals’ judgment (see e-Journal # 64142 in the 12/20/16 edition), the court agreed with the trial court’s assessment of the reliability of the victim’s identification based on the relevant totality of the circumstances. Thus, it reversed the Court of Appeals’ judgment and reinstated the trial court’s judgment dismissing the charges against defendant. The court found that an officer’s presenting a single photo to the victim, “accompanied by the question ‘was this the guy who shot you?’ was highly suggestive.” Further, there was insufficient record evidence “to conclude that the trial court erred when, in determining whether the suggestive procedure was necessary under the circumstances, it found this case distinguishable from the mortal exigency” that existed in Stovall. The trial court “did not find that exigency required an expedited identification procedure or that a less suggestive identification procedure would have been too burdensome to conduct; and” the court’s review of the record showed “insufficient evidence from which to draw such conclusions.” The court noted that “reliability is the ultimate touchstone for admissibility of an identification.” While an “unnecessarily suggestive identification may be admitted if it is sufficiently” reliable, the trial court ruled that the identification here “was unreliable under the totality of circumstances.” The parties did not dispute the facts as to the identification – “the victim viewed the assailant’s partially obscured face for no more than seven seconds on a dark city street with no streetlights while a gun was pointed at him.” The description he gave the police “was generic and could have described many young men in the area” and his “description of the assailant changed between his first interview and his follow-up interview at the hospital.” Thus, the trial court concluded that the single photo identification “was sufficiently unreliable that it should be suppressed.” The court agreed with the trial court. It also held that the trial court “did not err in determining that the victim’s in-court identification lacked an independent basis sufficient to ‘purge the taint caused by the illegal’ identification procedure used here.”