Opinion
SC: 163136 COA: 350397
03-04-2022
PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Mario Mandell MOORE, Defendant-Appellant.
Order
On order of the Court, the application for leave to appeal the November 19, 2020 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.
Cavanagh, J. (dissenting).
I dissent from the order denying leave in this case because the identification procedure used by the police was unnecessarily suggestive and its reliability is unclear.
This case stems from an armed robbery of a store in Hamtramck. Three men robbed the store with two employees inside. The robbers physically assaulted the employees and wielded a gun. The robbers fled after obtaining cash from the store's safe. Employees called 911, and the police picked up defendant and another man soon thereafter. The initial description was of one man wearing all gray, two men wearing all black, all of them aged 19 to 20 years old, all of them wearing masks, and all of them Black men. The initial description did not include any conspicuous features.
Within approximately 15 minutes after the robbery, the police took the employees to the site where defendant and the other man were being held to make an identification. The suspects were handcuffed during the identification procedure, and the witnesses were together when viewing the suspects from a police car. Defendant was being detained by a uniformed officer during the procedure, and the suspects were shown to the witnesses one at a time. One witness acknowledged that the suspects’ clothing did not match her initial description and said that she thought they had switched clothing. The witness testified that the robbers came into the store unmasked, but she acknowledged that she did not say that in the 911 call. When asked about what defendant was wearing in the store, the witness was unsure, but she emphasized that she tended to focus on people's faces: "I look at people in their face. I don't really try to look at their clothing. I look at people in their face."
Defendants moved to suppress the identification and for an evidentiary hearing pursuant to United States v. Wade , 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). The trial court granted the hearing but ultimately denied the motion. Defense counsel emphasized that this procedure was defective because the witnesses were together during the identification and because defendant was handcuffed. The trial court seemed to assume without deciding that the procedure was unnecessarily suggestive but found that it was nevertheless reliable. Its explanation was somewhat perfunctory. In finding that the witnesses had ample opportunity to view the suspect, the court explained, "And there is considerable, credible evidence, in this case, that both of the witnesses did have an opportunity to observe each of the defendants in this case, at the time of the crime, and within, somewhere between ten and fifteen or sixteen minutes thereafter." In finding that the witnesses had an ample degree of attention during the crime, the court reasoned, "And again, there was substantial and credible testimony that each of the witnesses had the opportunity to see, each of the defendants, at the time of the crime." In finding that the witness's prior description was accurate, the court reasoned, "[T]he description of the defendants, ... [a]t the time of the 9-1-1 call, is consistent with subsequent identifications, and with the testimony of the witnesses, during the evidentiary hearing." And in finding that the witnesses had a high level of certainty, the court noted that one witness claimed 100 percent certainty. Finally, the court noted that the identification occurred approximately 15 minutes after the robbery. But the court then said that "any discrepancy between ... a witness's initial description of the defendant's actual appearance, is relevant, as to the weight of the evidence, but not its admissibility." The court also said that "both witnesses made separate identifications of each of the defendants[.]" Finally, the court emphasized that the record suggested that the witnesses did not know where the police were taking them or why they were being taken when the police escorted the witnesses to the spot where defendant and the other suspect were being detained: "The record does show no influence by the Police, per the testimony of the witnesses."
The Court of Appeals affirmed the trial court's decision and opined:
[G]enerally ... ‘on-the-scene’ pretrial identifications are reasonable, indeed indispensable, police practices because they permit the police to immediately decide whether there is a reasonable likelihood that the suspect is connected with the crime and subject to arrest, or merely an unfortunate victim of circumstance. Thus, the on-the-scene identification could be considered necessary. [ People v. Moore , unpublished per curiam opinion of the Court of Appeals, issued November 19, 2020 (Docket No. 350397), p. 4, 2020 WL 6816982 (quotation marks omitted).]
The Court of Appeals then stated that the trial court's reliability analysis "clearly and specifically addressed" the relevant factors. Id. The Court of Appeals emphasized that the witnesses testified that they did not speak to each other and that the police did not suggest to them that defendant was among the men who robbed them.
All of this evidences a persistent misunderstanding of the problem of suggestive identification procedures. Introduction of identifications tainted by unnecessarily suggestive procedures violates due-process protections. Moore v. Illinois , 434 U.S. 220, 98 S.Ct. 458, 54 L.Ed.2d 424 (1977). Exclusion of an identification is required when "(1) the identification procedure was suggestive, (2) the suggestive nature of the procedure was unnecessary, and (3) the identification was unreliable." People v. Sammons , 505 Mich. 31, 41, 949 N.W.2d 36 (2020), citing Perry v. New Hampshire , 565 U.S. 228, 132 S.Ct. 716, 181 L.Ed.2d 694 (2012).
Both lower courts seemed to acknowledge that this procedure was suggestive, as they must. This was a showup, and "[t]he inherently suggestive nature of showups has long been beyond debate." Sammons , 505 Mich. at 41, 949 N.W.2d 36. However, it appears that factual errors may have led the lower courts to consider this particular showup less suggestive than it really was. For instance, the trial court stated that "both witnesses made separate identifications of each of the defendants[.]" That is incorrect. The undisputed testimony was that the witnesses were together in a car during the procedure. The trial court also emphasized that the witnesses said that they did not talk to each other prior to the procedure. However unlikely that may be, assuming it was true, it would not have mattered much here. The witnesses were together during the identification, so unless they simultaneously made positive identifications, one would have seen the other make a positive identification. The trial court noted that the police did not tell the witnesses where they were being taken and found that "[t]he record does show no influence by the Police, per the testimony of the witnesses." Assuming that the police did not tell the witnesses where the witnesses were being taken, the trial court was incorrect that this record showed "no influence by the Police...." This was a showup and was suggestive by its very nature. A showup " ‘conveys a clear message that the police suspect this man.’ " Sammons , 505 Mich. at 43, 949 N.W.2d 36, quoting Ex parte Frazier , 729 So 2d 253, 255 (Ala, 1998). Although the trial court seemed to acknowledge that the procedure was suggestive, the court did not accurately acknowledge the extent of its suggestive nature.
It seems unlikely that the police would not have told the witnesses where they were being taken or why. These witnesses were approximately 15 minutes removed from being the victims of a violent robbery and assault, and setting up a surprise confrontation with their possible attackers seems like an unlikely move for the police to make.
The trial court seemed to acknowledge that this showup was also unnecessary. The Court of Appeals stated that identification procedures such as a showup are reasonable practices and "could be considered necessary." Moore , unpub. op. at 4. There is nothing on this record to indicate any amount of necessity. The suspects were already in custody, and the witnesses were safe and available. While it might have been more expeditious to dispense with a fair procedure, neither the trial court, the Court of Appeals, nor the prosecution has offered any reason to explain why a fair procedure could not have taken place. To the extent that identifications can be made through a fair procedure, sooner is always better than later. But it should go without saying that "the police must avoid employing suggestive identification procedures whenever possible." People v. Johnson , 506 Mich. 969, 971, 951 N.W.2d 41 (2020) ( CAVANAGH , J., concurring).
Although this procedure was unnecessarily suggestive, it still could have been admissible if "the indicia of reliability are strong enough to outweigh the corrupting effect of the police-arranged suggestive circumstances...." Perry , 565 U.S. at 232, 132 S.Ct. 716. In evaluating reliability, we consider (1) the opportunity of the witness to view the criminal at the time of the crime, (2) the witness's degree of attention, (3) the accuracy of the witness's prior description of the criminal, (4) the level of certainty demonstrated at the confrontation, and (5) the time between the crime and the confrontation. Sammons , 505 Mich. at 50-51, 949 N.W.2d 36 (quotation marks and citation omitted). As an initial matter, I disagree with the Court of Appeals that the trial court's analysis was either "clear" or "specific." For the first three factors, the trial court essentially just restated the factor and indicated that the evidence supported a finding of reliability. In terms of the first two factors, the witnesses said that the criminals wore masks at least part of the time, violently assaulted them, and wielded a gun. Perhaps the proximity of the witnesses to the criminals outweighs these considerations, but an analysis that completely ignores them is not complete. The trial court stated that the prior description was accurate but that one witness suggested that the criminals stopped to switch clothing in the 15 minutes after they left. Both witnesses also failed to mention that defendant had the "%" symbol tattooed between his eyes. Given the idiosyncratic nature of this characteristic, its absence from the description is notable. One witness indicated that she believed that the criminals were approximately 19 or 20 years old, which was a wide miss from defendant, who was in his thirties. Also, the trial court stated that any discrepancy between the initial description and defendant's actual appearance would go to weight rather than admissibility, which is incorrect. The witnesses may well have indicated a high level of certainty about their identifications, but given the overwhelming suggestiveness of the procedure, it is not clear how much weight this factor should be given. The identification was certainly prompt, but again, given the overwhelming suggestiveness of the procedure and the lack of other indicia of reliability, the reliability of the identification as a whole seems questionable at best.
That the police conducted this suggestive procedure without any necessity is troubling. More troubling is that this suggestive procedure does not seem to be an isolated event. See Sammons , 505 Mich. at 38, 949 N.W.2d 36 ("The detective sergeant testified there was nothing out of the ordinary about conducting a showup this way."); Johnson , 506 Mich. at 971, 951 N.W.2d 41 ( CAVANAGH , J., concurring) (stating that "not only did the police administer an unnecessary showup, but they employed some type of form for the occasion, which seems to indicate that showups were routinely used"). The United States Supreme Court declined to employ a per se rule of exclusion for unnecessarily suggestive identification procedures, predicting that "[t]he police will guard against unnecessarily suggestive procedures under the totality [of the circumstances] rule, as well as the per se one, for fear that their actions will lead to the exclusion of identifications as unreliable." Manson v. Brathwaite , 432 U.S. 98, 112, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). In Johnson I observed that "[t]he police appear not to have been correctly incentivized either in Sammons or here." Johnson , 506 Mich. at 971, 951 N.W.2d 41 ( CAVANAGH , J., concurring). The same seems to be true here. Other jurisdictions have charted different courses than the constitutional floor set by Manson . See Sammons , 505 Mich. at 50 n. 13, 949 N.W.2d 36. Once again, we have not been asked to reach that question in this case.
Zahra, J., did not participate due to a familial relationship with counsel of record.