Witness identifications; Impermissibly suggestive pretrial identification procedure; Ineffective assistance of counsel; Failure to call an identification expert; First time in-court identification; Joinder; Motion to sever shooting & weapons charges; Whether double jeopardy barred retrial; Search warrant; Motion to suppress; Cumulative effect of errors

The court held that “the trial court did not err in finding that the procedures used in this case were not unduly suggestive to support suppressing the identifications made by” witnesses-S and H. Also, “defense counsel was not ineffective for failing to call an” eyewitness identification expert witness. Further, the record supported witness-SH “having an independent basis for identifying defendant.” And the court concluded the trial court did not abuse its discretion in allowing “the prosecutor to try defendant in one trial for the shooting and weapons charges.” Finally, his double jeopardy, search warrant, and cumulative error claims also failed. He was convicted of numerous crimes following a drive-by shooting. The court concluded that despite “the apparent distinctions between some of the” photos, it could not “say that the trial court erred in ruling that the array as a whole did not single out defendant or cause his photograph to stand out to” S and H. The photo array contained eight photos, “which were all separate, and [S and H], were told that the person who did it may or may not be included in the array.” At trial, both S and H “denied having discussed the photo array amongst themselves prior to making their independent identifications. The detective who produced the photo array also explained that while the software program the police department used to select photographs was not properly working when he prepared the lineup, he still tried to find photographs that were similar to those of the suspect’s description. To do this, [he] entered defendant’s photograph into the system and it produced the photographs that he could select from to use in the array. The trial court correctly recognized that some photos included were dissimilar to defendant, but also noted that the most unique photos were not of [him] and therefore did not stand out in a manner to suggest the identification of” him. Thus, he had “not shown that the trial court clearly erred with regard to its findings on the similarities among the photographs.” Further, the court found that given both SH’s “previous observations of defendant, along with this second encounter with him, the record supports [her] having an independent basis for identifying defendant.” Affirmed.