People v. Anderson

• Decision Date: 24 July 1972
• Docket Number: Docket No. 10839,No. 1,1
• Citation: 42 Mich.App. 10,201 N.W.2d 299
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James L. ANDERSON, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 299

201 N.W.2d 299

42 Mich.App. 10

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James L. ANDERSON, Defendant-Appellant.

Docket No. 10839.

Court of Appeals of Michigan, Division No. 1.

July 24, 1972.

Released for Publication Oct. 27, 1972.

Arthur J. Tarnow, State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Gerald A. Poehlman, Asst. Pros. Atty., for plaintiff-appellee.

Before LEVIN, P.J., and BRONSON and VanVALKENBURG, ^* JJ.

BRONSON, Judge.

Defendant and one Oscar Purvey were jointly tried for the armed robbery of a Detroit loan office in violation of M.C.L.A. § 750.529; M.S.A. § 28.797, by a jury in Detroit Recorder's Court. Purvey was acquitted. Defendant was convicted and sentenced to life imprisonment. He appeals of right.

Defendant raises four allegations of error. The first two deal with a pretrial photographic showup in which he was identified. The last two call our attention to factors considered by the trial judge in sentencing defendant. The facts relevant to each allegation will be set forth prior to our discussion of each issue.

The Pretrial Photographic Showups

The robbery in question occurred on February 5, 1970. Defendant and Purvey were arrested February 11, 1970, on an unrelated charge by the Southfield, Michigan, police. They were photographed by the Southfield police on the same day. Officers from the Detroit Police Department went to Southfield on February 12 and obtained copies of these photographs after defendant refused to let them rephotograph him.

On February 12, Detroit police officer Theodore Farquhar took some photographs to the loan office and showed them to employees who had witnessed the robbery. The officer could not remember whether defendant's picture was among those he exhibited. No identification was made on this date.

On February 13, Detective Jay Moore conducted a second photo showup at the loan office. Seventeen pictures, including the defendant's, were shown to witnesses. Five witnesses identified him as a participant in the robbery. Defendant was still being held by the Southfield police and an attorney was not present at this showing to represent him.

At trial, defendant was identified by the five witnesses who had picked his photograph and by two witnesses who appear not to have seen his photgraph prior to trial. During the testimony of Detective Moore, defendant's attorney moved to strike the in-court identification of the five witnesses who viewed the photographs because the prosecution could not show that the showups were not suggestive. The motion was denied.

Defendant's first contention is that the trial judge erred in denying this motion as no attorney was present at the pretrial photographic showups or represent the defendant. As defendant was in custody and had been questioned about this robbery, the use of the photo showup rather than a lineup effectively denied him the constitutional right to have an attorney present at a confrontation. The in-court identifications must be considered tainted as the product of an illegal confrontation and thus inadmissible. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968).

The prosecutor counters by arguing that the photographic showups were proper since defendant was not in the Detroit Police Department's custody and had not been accused of the crime. Further, the record shows that the proceedings were conducted fairly and that the in-court identifications were based on independent observations.

At the outset we note that defense counsel's motion at trial went to the showup's fairness and was based on detective Moore's inability to produce all 17 photographs used. The right to counsel argument made to us is raised for the first time on appeal. Generally, challenges to pretrial confrontations are reviewed only when a timely motion to suppress is made. People v. Childers, 20 Mich.App. 639, 645--646, 174 N.W.2d 565 (1969). However, the failure to preserve constitutional errors does not preclude judicial review. People v. Limon, 4 Mich.App. 440, 145 N.W.2d 287 (1966). Our primary concern is to insure the defendant a fair trial. People v. Degraffenreid, 19 Mich.App. 702, 173 N.W.2d 317 (1969). At trial, the crucial issue was the robbers' identity. Since the pictures used in the February 12 showup were chosen by computer and the defendant was not identified, we believe that if any error occurred at this showup it was, on this record, harmless constitutional error. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The same cannot be said for the February 13 showup. Our discussion will be concerned only with that identification proceeding.

Defendant's argument turns, in part, on the fact that he was in custody at the time. In People v. Cotton, 38 Mich.App. 763, 197 N.W.2d 90 (1972), this Court held that an accused who is in custody is entitled to representation by counsel at any photographic identification proceeding. The Court went on to note, in strong dicta, that even where an accused is not in custody, the right exists where the investigation has focused on the individual. See, also, United States v. Zeiler, 427 F.2d 1305 (CA3, 1970).

In Cotton, the defendant was arrested for and convicted of armed robbery. The photographic showup occurred after Cotton had been assigned counsel and had appeared in two lineups. In the instant case, defendant was being held by another police department on an unrelated charge. While defendant was in 'custody', we do not believe it was necessarily the type of custody to which Cotton refers. Custody itself adds little to a person's Sixth Amendment rights unless the investigation has focused on him. United States v. Davis, 399 F.2d 948 (CA2, 1968). See Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964).

Our inquiry in this case then is whether the investigation had ceased to be general and had focused on the defendant. On the record before us, there is not sufficient information from which we can make such a determination. We therefore remand this case for an evidentiary hearing. Among the factors the trial judge should consider in deciding this issue are the reasons for the showups and how far the investigation had advanced at the time of the showups.

If the trial judge shall determine that the presence of an attorney was not required at the February 13 showup, he shall next consider whether it was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Simmons v. United States, Supra. Finally, if the trial court shall determine that the pretrial photographic identification procedure was illegal or impermissibly suggestive, he shall determine whether there was an independent basis for the in-court identifications. The test for such a determination is found in Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441, 455 (1963):

"(W)hether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint."

See, also, People v. Martin, 37 Mich.App. 621, 194 N.W.2d 909 (1972). If the trial judge determines that the February 13 showup denied defendant his right to counsel or was impermissibly suggestive and that the in-court identifications were tainted, he shall order a new trial. At this trial, evidence of the pretrial identification proceeding shall be inadmissible.

At this hearing, the burden shall be on the prosecution. People v. Young, 21 Mich.App. 684, 693, 176 N.W.2d 420 (1970). This brings us to the second allegation of error raised by the defendant. He contends that he was denied due process by the intentional discarding of the photographs used prior to trial. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); United States v. Bryant, 142 U.S.App.D.C. 132, 439 F.2d 642 (CA D.C., 1971); United States v. Consolidated Laundries Corp., 291 F.2d 563 (CA2, 1961).

In Brady, the Supreme Court held that due process was violated when the prosecution suppressed evidence favorable to the defendant upon request. In both Brady and Consolidated Laundries, the suppressed evidence was in the prosecutor's possession and the courts were able to determine whether the evidence was favorable or not in the instant case, like Bryant, it is not possible to determine whether the photographs were favorable or not. The inability to produce all the photographs used, however, clearly inhibited defense counsel's ability to cross-examine the identifying witnesses....