People v. Anderson
| Decision Date | 27 March 1973 |
| Docket Number | No. 4,4 |
| Citation | 389 Mich. 155,205 N.W.2d 461 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v, Franklin ANDERSON, a/d/a Frederick Anderson, Defendant-Appellant. |
| Court | Michigan Supreme Court |
Edward G. Durance, Pros. Atty., Robert G. Fraser, Chief Asst. Pros. Atty., Midland, for plaintiff-appellee.
Sinclair, Edwards & Clulo by Herbert H. Edwards, Midland, for defendant-appellant.
Before the Entire Bench.
WILLIAMS, Justice (for affirmance).
This is a very complicated case. A woman was brutally raped and murder attempted. After the woman was found in critical condition she was questioned at the hospital by various persons as to the identity of her assailant. Based on that information, a suspect was arrested and a polaroid shot taken of him. This polaroid along with a number of 'mug shots' was under various times and circumstances shown to the victim. In each case she identified the defendant.
The heart of the prosecution's case was identification of the defendant by the victim. At trial defendant objected to identification being made by the victim on the basis of United States v. Wade and successor cases 1 because of the character of the photo showup and because there had been no lawyer present at the photo showups. The issue in the case therefore is what the requirements of Wade and successor cases are and whether they were satisfied by the facts in this case.
This opinion will review I. The Detailed Facts, II. The Wade Rules, III. The Psychological Basis for Wade, IV. The Application of Wade to Photographic Identification Procedures in Michigan, V. Application of Rules to the Facts of this Case, VI. Minor Issues, Conclusion.
IDENTIFICATION ISSUES
This crime involves a savage assault on a bar waitress with intent to commit murder. The victim had seen the defendant four or five times at the bar where she worked. On the night of the assault, the victim had seen but was not with the defendant in the bar. The accused left the bar prior to the 'last call.' The victim left with a Mr. Whitman after closing and had 'coffee' with him at her home until 3:30 when she left to see another male friend. Mr. Whitman said he saw a red car with fins and no headlights containing only the driver execute a U-turn and then follow the victim.
En route, the victim testified she stopped or was stopped. Thereafter she was personally struck, driven away in a red car with fins, and later assaulted. People's proofs included evidence of the victim's fingerprints on defendant's car, blood of her type on the car's seat and matching paint smears in damaged areas on the victim's and defendant's cars. There was also testimony placing the defendant and his car at a gas station near the victim's home just after 2:00 a.m.
PRE-SURGERY
When found injured in a field the following morning, an ambulance was called and the ambulance driver, while preparing the victim for transport to the hospital, asked whether she had been in an accident and the victim responded 'uh uh' (no); whether she had been beaten--'uh huh' (yes); whether she had been raped--'uh huh' (yes) (page 78a). The victim was taken to Midland Hospital.
Deputy Sheriff Gransden had been at the scene and followed the ambulance back to the hospital and was in the emergency room while the victim was being examined before surgery. He questioned her and her responses were by nodding her head 'yes' or 'no' and by writing on the back of a surgical glove envelope. She nodded 'no' when asked if she knew assailant's name. She wrote her name on a pad. Asked again about the assailant she wrote (page 120a). The victim was taken to X-ray before surgery.
Present in the X-ray room were a nurse and the ambulance driver. The ambulance driver questioned the victim about her assailant further and her responses were by nodding her head 'yes' or 'no.' He asked whether he were white--'no'; colored--'no'; Mexican--'no'; Indian?--here she responded by voice and had to say the word several times before the ambulance driver and the nurse present both understood. The word was 'Indian' (pp 82a--86a):
(page 87a).
The ambulance driver continued to ask whether the assailant had brown hair?--' no'; black hair?--'yes'; whether they had been friends?--'no' (p. 87a).
POST SURGERY MEETING 8:15 P.M.
The victim was taken to surgery sometime after the questioning in the X-ray room and there was no further communication with her until 8:15 that evening after surgery in her hospital room. Present for the questioning were Deputy Sheriff Gransden, Sheriff's Matron Theisen, the prosecutor and a nurse. The victim was unable to talk but could nod her head and give gestures with her hands (p. 60a). Matron Theisen was there to take notes and later testified as to the questioning (p. 133a and following). Deputy Sheriff Gransden went through a series of names picked at random (including defendant's name) to see if she could pick out any certain name. (Frederick, James, Jim--p. 62a and 141a) She was also asked 'Anderson' but the record is unclear as to her response to that. When the name 'Frank' was mentioned there was a definite response and she waved her hands around (pp. 140a--141a). Asked if she saw the car she nodded 'yes.' Asked whether attacked in her car she shook her head no. Asked whether it was a pickup truck she shook her head no. She nodded yes when asked if it was a car. Deputy Gransden then went through four colors of cars, blue, black, white, red. She nodded yes to red (p. 141a). Deputy Gransden went through the different makes of cars and when he mentioned 'Dodge' she indicated yes (p. 62a). Apparently by the same process it was established that the assailant was in the neighborhood of six feet, somewhere around 200 pounds and an Indian. Asked whether she could identify the person who attacked her she nodded her head 'yes' (p. 140a). There were no pictures shown to the victim at this 8:15 meeting.
POST SURGERY MEETING 11 P.M.--FIRST PHOTO LINEUP
The defendant was arrested at about 9:30 p.m. and between 10 and 10:30 a black-and-white polaroid photograph was taken of him by a Bay City officer. Deputy Gransden drove to Bay City, picked up the picture and returned to Midland, having called ahead to have Matron Theisen select other pictures from the files for a photo show-up (p. 143a). Deputy Gransden and Matron Theisen returned to the victim's hospital room at 11:00 p.m. with six pictures, including the polaroid of defendant.
Defendant's picture was a polaroid shot with perforated edges and depicted a single head-on view. The other five pictures were standard 'mug shots' depicting front and side views. Each picture had prison numbers superimposed over the front view and an arrest card was attached to each picture except that of the defendant. Before being shown the pictures, the victim was told there was a suspect and his picture was included in those she would be shown (p. 144a). The pictures were shown to the victim individually with defendant's picture shown last. The victim identified defendant as her assailant.
DAY AFTER SURGERY--SECOND PHOTO-LINEUP
On the following day, the prosecutor conducted a 'lineup' with the same pictures shown individually in the same sequence. The victim again selected defendant's photograph as pictorial identification of her assailant.
THREE DAYS PRIOR TO PRELIMINARY EXAM--THIRD PHOTO-LINEUP
Three days prior to the preliminary examination a third photo lineup was conducted by Officer Whipple for the purported reason of making a 'positive identification' (p. 131a). On this occasion the photos were given to her in folders.
Counsel had been appointed after the second lineup but the third lineup was accomplished without notice to counsel. On this occasion there were twelve pictures shown her, all except that of defendant being front and side views while that of defendant was the same polaroid photograph shown earlier. Each photograph, including that of defendant, had paper covering the place where prison identification numbers could have been seen. On this occasion the victim again identified Anderson (p. 106a). Officer Whipple said the reason he made folders as described was that it would have been 'suggestive' otherwise (p. 508a).
TRIAL
Timely and continuous objections by defendant's counsel to the victim's in-court identification were made at the preliminary examination, pretrial motions and by oral trial objections. On the motion to suppress there was testimony by Dr. Russell Leach, a psychiatrist. A hypothetical question (pp. 149a--200a) recited the facts up to and until the first photo show but excluded the fact that the victim had previously seen defendant in the bar numerous times. The doctor testified that it was 'highly probable' that the first identification was suggestive; that as to the second identification it was 'possible that it would be highly probable' to be suggestive. As to the in-court identification, however, the testimony is less clear:
'Q. And, some twenty days later, an in-court identification of the man as the man who had, in fact, attacked her, a man who she had seen time and again, a face she would never forget, would you say that this in-court identification was the product of suggestion?
(p. 207a)
SECURITY PRECAUTIONS ISSUE
During testimony as to matching paint smears on the victim's and defendant's autos, the jury and the court moved to the courthouse parking lot where both cars were. To assure defendant's presence without creating prejudice the trial judge ordered the defendant be taken down to the parking lot before...
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... ... The people" shall be informed so that they may fully participate in the democratic process.\" ... Section 3(1) of the act states: ... \xC2" ... Anderson, 389 Mich. 155, 170, 205 N.W.2d 461 (1973) ... Similarly, see Dean v. Chrysler Corp, 434 Mich. 655, 455 N.W.2d 699 (1990); People v. Beach, 429 ... ...
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