People v. Kurylczyk

Brickley, J.

(concurring in part and dissenting in part). While I agree with the lead opinion that the decision of the Court of Appeals should be affirmed, I write separately to express my disagreement with the lead opinion’s affirmance of the lower courts’ findings that the photographic lineup was not impermissibly suggestive.

This Court has recognized both "[t]he scientifically and judicially recognized fact that there are serious limitations on the reliability of eyewitnesses identification of defendants . . . .” People v Franklin Anderson, 389 Mich 155, 172 ; 205 NW2d 461 (1973). The United States Supreme Court has also recognized the dangers inherent in *320 eyewitness identification evidence. In United States v Wade, 388 US 218, 228 ; 87 S Ct 1926 ; 18 L Ed 2d 1149 (1967), the majority noted:

[T]he confrontation compelled by the State between the accused and the victim or witnesses to a crime to elicit identification evidence is peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial. The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification.

One commentator has noted:

Scientific evidence concerning the unreliability of eyewitness identification has continued to mount since the Wade trilogy. Contrary to popular understanding, our eyes and memories do not operate like a camera on which events are accurately recorded subject to retrieval at any time, but in fact memory can be altered to a significant extent by information perceived after the fact. Also, through a process known as "unconscious transference,” a person seen briefly in one context may be erroneously "recognized” in another time and place. Thus, a crime victim may select someone from a lineup because he or she has seen that person in ... a previous photo lineup, rather than at the scene of the crime. Despite such dangers, however, juries find eyewitness testimony to be highly persuasive. [Sobel, Eyewitness Identification, § 1.1, pp 1-2 to 1-3.]

It is important to keep in mind the widely acknowledged dangers inherent in identification procedures. Witnesses are capable of making mistaken identifications, but yet may be certain that they have correctly selected the perpetrator of the crime. Because of the possibility of such errors, *321 law enforcement agencies and courts must carefully guard against creating situations in which there is a high likelihood that witnesses will be led to identify an innocent person as being a perpetrator of a crime. Furthermore, they must guard against the danger that, once a witness has identified a person depicted in a photograph as the perpetrator of a crime, they may be likely to base later identifications of the suspect upon that photograph, rather than on their recollection of the crime.

In determining whether pretrial photographic arrays violate the constitutional rights of the accused, courts must determine whether the array creates a substantial likelihood of irreparable misidentification. Simmons v United States, 390 US 377, 383 ; 88 S Ct 967 ; 19 L Ed 2d 1247 (1968); Neil v Biggers, 409 US 188, 196 ; 93 S Ct 375 ; 34 L Ed 2d 401 (1972), Anderson, supra, p 169 . In this case, tellers Mary Kamendat and Cindy Dortman were presented with a photographic array containing six pictures. All the photographs showed men wearing short-sleeved shirts and baseball hats, all wore sunglasses and all were potbellied. In addition, all were positioned against similar backgrounds and all pictures were cropped to roughly the same size. However, the image of the defendant appears larger than the images of the other subjects, and the background in the picture is a slightly different color. He is standing at a different angle than the others. In addition, three of the other subjects had mustaches. Finally, and perhaps most noteworthy, the defendant’s picture clearly reveals that he has a "trucker’s wallet” in his back pocket that is attached to his belt with a chain. No such wallet appears in the photographs of the other subjects.

The general consensus among the eyewitnesses *322 was that the suspect was about six feet tall with a potbelly, wearing a short-sleeved shirt, a baseball cap, sunglasses and a chain wallet on his belt. He was not described as having facial hair. In this photographic array, only one subject met this description: defendant Kurylczyk. 1 Furthermore, as the lead opinion notes, the chain wallet worn by the robber is prominently visible in the surveillance photographs of the robbery. Both Kamendat and Dortman testified to having seen the surveillance photograph in the paper. Thus, this feature was reemphasized for them. Most certainly, the chain wallet was an important facet of the robber’s appearance. Along with the other features that distinguished the defendant’s photograph, I think that the fact that he was the only one that was obviously wearing such a wallet makes this array impermissibly suggestive. I think there is no doubt that this lineup was suggestive, and that it suggested to the witnesses that the defendant was the perpetrator.

The lead opinion states that in order to find that a lineup is unduly suggestive, however, a court must determine whether the Neil v Biggers criteria are satisfied. Ante, p 306. I do not agree that these criteria indicate that there was no substantial likelihood of misidentification. 2 Although the lighting in the bank was good, the robbery only *323 lásted three to four minutes. Neither of the two tellers were looking at the robber for the entire duration of the robbery. Further, the evidence showed that Dortman only observed the robber for approximately one minute. 3 In addition, another factor undermines the reliability of their identification. As the lead opinion notes, some of the employees had identified another person as the robber. One of these employees was Kamendat, the witness who was directly confronted by the robber, and thus had the best view of him. In explanation of this event, she testified that she thought that this other person was the robber in part because he was wearing a chain on his belt. Ante, p 308. The fact that the best witness identified another person as the robber, in part on the basis of the fact that he was wearing a chain wallet shows how important this feature was to the identification of the suspect.

Although I acknowledge that it is rare for courts to find photographic arrays impermissibly suggestive, some examples are in accord with the conclusion I reach here. In Commonwealth v Thornley, 406 Mass 96, 97, 99-100; 546 NE2d 350 (1989), the Supreme Judicial Court of Massachusetts found a photographic array impermissibly suggestive. The array consisted of photographs of thirteen men, with only the defendant wearing glasses. Both witnesses had originally described the perpetrator as wearing glasses, and stated that they chose the defendant because of his glasses. In State v Iron Thunder, 272 NW2d 299 (SD, 1978), the victim *324 described the perpetrator as having a big belly. She was presented with a photographic array that included five photographs of other subjects, and two photographs of the defendant, one showing only his bare chest and stomach, and another picture of his face and shirt open at the collar. Furthermore, the five other subjects had identification boards around their necks. The court found that this was impermissibly suggestive. Id., p 301. 4 See also Butler v State, 544 So 2d 1115 (Fla App, 1989) (a photographic array was found to have been impermissibly suggestive because only the defendant wore the distinctive clothing described by witnesses, the picture had a different background, and the police required one of the witnesses to narrow her two choices to one); People v Shea, 54 AD2d 722 ; 387 NYS2d 477 (1976) (a photographic array was found to have been impermissibly suggestive because the defendant’s picture was in color and was smaller in size than the others, the defendant’s picture appeared more than once, and he was the only one depicted as possessing the identifying characteristic of a blond afro).

I acknowledge that it appears that these cases are distinguishable because the witnesses chose each of the photographs in question on the basis of the characteristic that distinguished it from the other photographs. However, although these two witnesses did not testify that they based their identification of the defendant’s photograph on the chain wallet that he wore, it was clearly an important part of his appearance. It was a part of the original description by Cindy Dortman. In addition, as I noted above, when Mary Kamendat mistakenly identified the bank customer as the *325 robber, she testified that she did so in part because he, too, wore a chain wallet.

Given the suggestiveness of the photographic array and the lack of reliability of the identifications under the totality of the circumstances, I would hold that this photographic array was impermissibly suggestive. Thus, I believe that the trial court erred in allowing Kamendat and Dortman to testify regarding their identification of the defendant’s photograph in the array.

Although I find this lineup to be impermissibly suggestive, I would not reach the issue whether the exposure of Kamendat and Dortman to this lineup tainted their subsequent identifications. Even if it did, I find the error to be harmless in light of the other evidence against the defendant, including the identifications made by witnesses Shirley Smith and Gladys Caris. I agree with the lead opinion that the corporeal lineup is not constitutionally impermissible, and I agree that the exposure of the witnesses to the surveillance photograph of the robber and postarraignment photograph of the defendant did not violate the defendant’s constitutional rights. Thus, I concur with the lead opinion’s result.

Cavanagh, C.J., and Levin, J., concurred with Brickley, J.

The United States Court of Appeals for the Second Circuit has noted that, in order to be constitutionally valid, "[t]he array must not be so limited that the defendant is the only one to match the witness’s description of the perpetrator.” United States v Maldonado-Rivera, 922 F2d 934, 974 (CA 2, 1990).

In addition, I question how helpful some of these criteria actually are in determining whether an identification is reliable. Although the lead opinion finds support in the fact that both witnesses testified that they were certain that the defendant was the robber, some studies have indicated that there is little correlation between the confidence that witnesses express in their certainty and the accuracy of their observations. See Zalman & Siegel, The psychology of perception, eyewitness identification, and the lineup, 27 Crim L Bull 159 (1991).

In addition, some studies support the conclusion that the fact that the robber was carrying a gun makes it less likely that the witnesses were focused on the robber’s face for the entire duration of the robbery. Experimental data has shown that in situations in which a weapon was visible, subjects called upon to describe the facial features of the carrier were much less able to do so than in situations where a weapon was hidden. See Kramer, Weapon focus, arousal, and eyewitness memory, 14 Law & Human Behavior 167 (1990).

The court went on to find that the identification had an independent basis. Id., p 302.