Motion to suppress identification evidence; People v Kurylczyk; Substantial likelihood of misidentification in a lineup; Successive identifications; Simmons v United States; Other acts evidence; MRE 404(b)(1); Evidence that defendant fled from the police; Images of him possessing a gun; Relevance; Unfair prejudice; MRE 403; Joinder of charges; MCR 6.120(B)(1) Sentencing; Proportionality; People v Steanhouse

The court held that the trial court did not err in denying defendant’s motion to suppress evidence that one of the victims (A) “identified him as the shooter in a pretrial lineup.” It also rejected his claim that evidence that he fled from the police and images of him possessing a gun should have been excluded. His argument that the witness intimidation charge should not have been joined with the other charges likewise failed. Finally, the court held that his 35 to 60-year sentence for his second-degree murder conviction was not “disproportionate to the circumstances of the offense and offender.” He was also convicted of AWIM, FIP, witness interference, and felony-firearm. The court first determined that given “the totality of the circumstances of [A’s] identifications, the procedure for identifying defendant in the live lineup two weeks after the identification in a photographic lineup was not unduly suggestive. Two different modalities were used. The first was photographs, which were apparently not current, and resulted in an only tentative identification of defendant as the attacker. The live lineup featured [his] entire body and most recent appearance, from which [A] readily identified him. Thus, [A] was presented with different versions of defendant based on those different modalities, the first of which did not necessarily suggest the second. Indeed, [A] was shown a completely novel presentation of defendant in the live lineup, given that [it] did not call for focusing narrowly on the subject’s face and offered a view of defendant’s current appearance.” The court also noted that while A “had never met defendant before the incident in question, on that occasion [A] participated in an estimated five-minute conversation with [him] at close range, after seeing defendant walk in front of him, in clear, sun-lit conditions, immediately before defendant shot him.” The court further concluded that “evidence of defendant’s attempt to evade capture was admitted for the proper purpose of demonstrating his consciousness of guilt after the shootings, rather than as improper character evidence.” And the cell phone images of him “with a semiautomatic handgun similar to the one used in the shootings were admitted for the proper purpose of proving his identity, knowledge, preparation, and possibly a lack of mistake in unlawfully possessing a handgun, rather than as improper character evidence.” Affirmed.