People v. Anderson

• Decision Date: 16 April 1974
• Docket Number: No. 1,1
• Citation: 391 Mich. 419,216 N.W.2d 780
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James Lee ANDERSON, Defendant-Appellant. 391 Mich. 419, 216 N.W.2d 780
• Court: Michigan Supreme Court

Page 780

216 N.W.2d 780

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

No. 1.

391 Mich. 419, 216 N.W.2d 780

Supreme Court of Michigan.

April 16, 1974.

William L. Cahalan, Prosecuting Atty., Dominick R. Carnovale, Chief Appellate Dept. Gerard A. Poehlman, Asst. Pros. Atty., Detroit, for plaintiff-appellee.

State Appellate Defender Office by John B. Phelps, Asst. Defender, Detroit, for defendant-appellant.

Before the Entire Bench except LEVIN, J.

T. G. KAVANAGH, Justice.

The defendant, James Lee Anderson, was convicted of armed robbery. M.C.L.A. § 750.529; M.S.A. § 28.797. Five of the witnesses who identified him at the trial had previously identified him at photo showings. The showings were held while Anderson was in custody in connection with another offense and, it would appear, under suspicion of having committed this offense. He was not represented by counsel at the showings.

The Court of Appeals remanded, 42 Mich.App. 10, 201 N.W.2d 299 for an evidentiary hearing to determine whether the investigation had focused on Anderson and whether the showings were impermissibly suggestive and, if so, whether the identifications had an independent source. The Court of Appeals also required, in the event such remand hearing did not result in a new trial, that Anderson be resentenced before another judge because the trial judge had indicated he had taken into consideration at sentencing his belief that Anderson had protected a co-defendant resulting in the co-defendant's acquittal.

The prosecutor appeals on leave granted claiming that Anderson did not have a right to counsel at the photo showings because they took place before a formal complaint had been filed and an arrest warrant issued on the armed robbery charge, citing the decision of the United States Supreme Court in Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972).

The prosecutor also contends, relying on the still more recent decision in United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973), that the Sixth Amendment right to counsel does not apply t photo showings.

In People v. Franklin Anderson, 389 Mich. 155, 205 N.W.2d 461 (1973), this Court held that there should be no photo showing if a corporeal lineup could be held. We said that a photo showing of a person in custody in the situation where a corporeal lineup could not be held for the reasons suggested on pp. 186--187, 205 N.W.2d 461, did not diminish the right to counsel at such photo showing. The People argue in the instant case that the rule of Franklin Anderson should not apply, because the defendant was in custody for a different crime in a different place. We are not persuaded. It is the fact of custody that requires implementation of the Franklin Anderson rule, not the place of or reason for the custody.

In People v. Jackson, Mich., 217 N.W.2d 22 (1974), this Court considered the Kirby and Ash decisions of the United States Supreme Court and held, independent of any Federal constitutional right to counsel, that there is such a right to counsel except in exigent circumstances where there is need to conduct the showing before the accused can be informed of his right to counsel and has an opportunity to obtain counsel.

For the reasons set forth in People v. Franklin Anderson, supra, 389 Mich., pp. 168--169, 186--187, 205 N.W.2d 461, and People v. Jackson, Supra, this case is remanded to the trial court for an evidentiary hearing.

If James Lee Anderson does not obtain a new trial following the hearing on remand he should be resentenced before another judge as the trial judge did err in taking into consideration at the time of sentencing his personal impression that Anderson was protecting a co-defendant. Anderson could not properly be punished for exercising his right to remain silent at the trial guaranteed by the Fifth Amendment to the United States Constitution. We regard the judge's consideration of his belief that Anderson was shielding a co-defendant as the equivalent of the error found in Scott v. United States, 135 U.S.App.D.C. 377, 419 F.2d 264 (1969), wherein the United States Court of Appeals for the District of Columbia Circuit rejected the argument that a judge may impose additional punishment because he believes the defendant committed perjury, saying that if the government wishes to prosecute for the independent substantive offense of perjury it may do so and that in such a proceeding the defendant would be entitled to all the protections of a criminal trial. Similarly, see People v. White, 130 Ill.App.2d 775, 267 N.E.2d 129 (1971).

Since the decision herein by the Court of Appeals, we have held that a sentencing judge may consider the juvenile record of a defendant at the time of sentencing. See People v. McFarlin, 389 Mich. 557, 208 N.W.2d 504 (1973).

Remanded for further proceedings consistent with this opinion.

T. M. KAVANAGH, C.J., and WILLIAMS and SWAINSON, JJ., concur.

COLEMAN, Justice (dissenting).

While in jail for an armed robbery in Southfield, defendant became a suspect in the instant case which concerns an armed robbery in Detroit. The case was in a purely investigative stage. No judicial proceedings had begun.

On February 12, 1970, the witnesses to the Detroit robbery were shown fifty photographs. They did not identify any and it is not known whether or not defendant's photo was among them. The next day, seventeen more photographs were shown to the witnesses. Five identified the defendant. One eye witness not present at the photo showing identified defendant independently at trial. Defendant also admitted guilt at his sentencing hearing, so there is no...