Whether an in-court identification should have been suppressed; People v Sammons; People v Kurylczyk; People v Gray; People v Metcalf

Holding that there was no improper pretrial identification, the court concluded the trial court did not err in admitting the victim’s (H) in-court identification of defendant-Smith. Thus, it affirmed his unarmed robbery conviction. He asserted that he was entitled to a new trial because the trial court’s failure to suppress H’s “suggestive, unnecessary, and unreliable in-court identification deprived him of his right to a fair trial.” The court disagreed, noting that H “(1) without prompting, identified Smith as his attacker to police officers at the scene; and (2) did identify Smith during the preliminary examination.” A short time after the incident, H “spontaneously and independently identified Smith as his attacker to the police officers located nearby. Based upon [H’s] on-scene identification of Smith, police officers were able to question Smith and take him into custody.” And when asked during the preliminary exam “about the identity of the person who attacked him, [H] identified Smith, but stated, in relevant part: ‘I’m not sure if that was the same person because it’s been so long ago but his—what’s the word I’m looking for—his presentation is the same as the guy that had did it.’ On cross-examination, [H] indicated he was not sure Smith was the same person who assaulted him.” The court found that defendant mischaracterized H’s testimony on appeal, claiming H “was unable to identify Smith before trial. However, [H] clearly made two pretrial identifications of Smith, although the identification at the preliminary examination was made without complete certainty. Because [H] independently identified Smith as his attacker before trial, there is no improper pretrial identification.” Defendant complained the procedure the prosecutor used “was impermissibly suggestive because the prosecutor emphasized his certainty that they had the ‘right man’ when showing” photos of the assault. The court determined the fact H’s “certainty level changed after his memory was ‘jogged’ by the photographs was a matter suited for cross-examination and for the defense’s closing argument. The defense did, in fact, impeach the identification by pointing out the weaknesses in [H’s] various identifications of Smith as his assailant.”