Evidence of pretrial identifications; Whether identification procedures were impermissibly suggestive; People v Posey; People v Kurylczyk; People v Smith; Ineffective assistance of counsel; Failure to object

The court held “that the lineup in question was not impermissibly suggestive, thus permitting the admission of” the challenged pretrial identification evidence. And the court found that defense counsel was not ineffective. Thus, it affirmed defendant’s AWIM, armed robbery, and felony-firearm convictions. On appeal, he challenged the admission of pretrial identifications made by the victim (M). The court first noted “that an attorney was present during the lineup to safeguard its fairness.” Defendant argued “it was error for the police to tell [M] that they ‘had the guys.’ No officer testified that they ever told [M] they had the guys or that the suspect was in the lineup. Further, as alluded to by the trial court, it could be that [M] presumed ‘they had the guys’ when he was asked to come and view a lineup.” Even if the court presumed an officer told M “that he ‘had the guys,’ the record does not reveal that police signaled to [M] that defendant was the perpetrator. Further, review of the corporeal lineup does not reveal that the lineup was unduly suggestive, that defendant was the only participant in the lineup, or that anyone other than [M] pointed to defendant as the perpetrator. Rather, the record reveals that [M] was instructed that he should not feel obligated to make an identification, as it was entirely possible that the perpetrator was not included in the lineup.” In addition, a “comprehensive review of the transcript undermines defendant’s second and third arguments regarding witness conversation and police commentary concerning [his] appearance, name, and lineup position.” The court also found that the photographic lineup here reflected a situation comparable to that in Kurylczyk. The image depicted “five Black males who exhibit similar age, height, and physical build, with the majority dressed in dark-colored attire and long pants. The photograph’s quality presents challenges in discerning the individual hairstyles of the participants; however, they all appear to have short to medium-length hair. The assertion by [a witness] that this lineup constituted a ‘look-alike type of thing’ further supports the claim that defendant was not uniquely identified based on appearance.”