People v. Barnett

• Decision Date: 28 October 1987
• Docket Number: No. 83529,83529
• Citation: 414 N.W.2d 378,163 Mich.App. 331
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Tilman BARNETT, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 378

414 N.W.2d 378

163 Mich.App. 331

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Tilman BARNETT, Defendant-Appellant.

No. 83529.

Court of Appeals of Michigan.

Submitted Oct. 15, 1986.

Decided Sept. 22, 1987.

Released for Publication Oct. 28, 1987.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Carl J. Maringa, Pros. Atty., Don L. Milbourn, Chief Appellate Lawyer, and Robert John Berlin, Asst. Pros. Atty., for the people.

D'Agostini, McKinnon & Sable, P.C. by David A. McKinnon, Mt. Clemens, for defendant-appellant.

Before WAHLS, P.J., and R.B. BURNS and WARSHAWSKY ^*, JJ.

PER CURIAM.

Following a jury trial, defendant was convicted of two counts of first-degree murder, M.C.L. Sec. 750.316; M.S.A. Sec. 28.548, and was sentenced to two concurrent terms of imprisonment for life. Defendant appeals as of right, raising several claims of error, none of which warrant reversal.

First, defendant asserts that the police were obligated to inform him of his Miranda ¹ rights prior to obtaining his fingerprints. We disagree. Fingerprinting is a manner of identification and not incrimination. People v. Davis, 89 Mich.App. 588, 592, 280 N.W.2d 604 (1979). The Fifth Amendment right not to be a witness against oneself does not protect an accused from being compelled to provide fingerprints. People v. Williams, 42 Mich.App. 278, 280, 201 N.W.2d 286 (1972), lv. den. 389 Mich. 779 (1973).

In the instant case, defendant's fingerprints were taken, along with the fingerprints of several other people, in an attempt to eliminate certain people as suspects. At the time of the fingerprinting, defendant was not under arrest, nor was he asked to give a statement. Because defendant was not being questioned and no testimonial evidence was being taken, defendant's Fifth Amendment rights did not come into play. Since no Fifth Amendment rights were involved, Miranda warnings were not required.

Defendant also asserts that he was unlawfully detained without probable cause at the time his fingerprints were taken, and that evidence obtained as a result of the illegal search and seizure was tainted and inadmissible at trial. The parties agree that defendant was not under arrest, nor was there a search warrant, when defendant was taken to the police station and fingerprinted. The parties diverge on the issue of consent. The prosecutor claims that defendant consented while defendant asserts that he did not consent to the procedure.

When consent is alleged, the burden is on the prosecutor to prove that consent was unequivocal, specific, and freely and intelligently given. People v. Swinford, 150 Mich.App. 507, 518, 389 N.W.2d 462 (1986), lv. den. 426 Mich. 861 (1986); People v. Brown, 127 Mich.App. 436, 440-441, 339 N.W.2d 38 (1983), lv. den. 419 Mich. 896 (1984). Whether consent was valid is a question of fact to be determined by the trial court upon the basis of the evidence and all reasonable inferences drawn from it. Swinford, supra; Brown, supra. A trial court's determination following a suppression hearing will not be overturned unless the ruling was clearly erroneous. Swinford, supra; Brown, supra.

During the course of trial in the instant case, a Walker ² hearing was held to determine, among other things, if defendant had voluntarily consented to having his fingerprints taken. Based upon the testimony of a police detective and the defendant, the trial court found that defendant knew he was not under arrest and voluntarily agreed to submit to fingerprinting. Our review of the record leads us to conclude that the trial court's determination was not clearly erroneous. There was ample evidence presented to support the trial court's finding that defendant had consented to fingerprinting.

Defendant further asserts that because his fingerprints were illegally obtained, the evidence discovered pursuant to the search warrants based on probable cause established by the fact that defendant's fingerprints were found at the scene of the crime should have been suppressed as "fruit of the poisonous tree." As we have concluded that defendant's fingerprints were lawfully obtained pursuant to defendant's consent, we find defendant's argument to be completely without merit.

Next, defendant argues that the trial court erred by admitting evidence of a blood sample taken from defendant pursuant to a search warrant since defendant's attorney was not notified that a blood sample would be taken. Defendant contends that the Sixth Amendment right to counsel extends to the taking of a blood sample pursuant to a search warrant.

The Sixth Amendment right to counsel extends to all critical stages of the prosecution, i.e., those stages where counsel's absence might derogate from the accused's right to a fair trial. People v. Buckles, 155 Mich.App. 1, 6, 399 N.W.2d 421 (1986), citing United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). The Sixth Amendment right to counsel does not extend to the taking of fingerprints or blood samples as they are not critical stages since there is minimal risk that counsel's absence might derogate from the accused's right to a fair trial. Wade, supra, pp. 227-228, 87 S.Ct. pp. 1932-1933. Defendant's Sixth Amendment right to counsel was not violated in this instance, and the evidence was properly admitted at trial

Defendant also challenges the in-court identification of defendant by a witness after the witness had seen a newspaper photograph of the defendant. Where a witness' identification of a defendant is based upon a newspaper photograph rather than the witness' own perception, the identification should be excluded. People v. Prast (On Rehearing), 114 Mich.App. 469, 488, 319 N.W.2d 627 (1982).

In the instant case, the trial court did not err in admitting the identification testimony since the witness testified that her in-court identification of the defendant was based upon seeing the defendant in the store where she was employed, and not upon the newspaper photograph. Even if we were to conclude that the witness' identification was tainted, admission of the identification testimony would constitute harmless error in light of the testimony of three other witnesses who identified defendant as the person who had made credit purchases with the victims' credit cards.

Defendant also contends that the trial court erred by allowing defendant's trial to commence on November 1, 1984, after defendant was informed on October 31, 1984, that he would not be tried until after the trial of a codefendant. Defendant's claim of error is completely without merit. Defendant was informed on October 31, 1984, that he would not be tried until after the trial of a codefendant. Later that same day, the prosecutor notified the defendant and defense counsel that defendant Barnett would be tried first. Although defense counsel objected to the manner of notification, defense counsel twice stated that he was prepared for trial to commence. In addition, defendant's claim that he was unable to give sufficient notice of alibi witnesses lacks merit. Defendant had several months in advance of trial to prepare an alibi defense. However, defendant had not filed a notice of alibi defense even though trial was originally scheduled for October 30, 1984, nor did defendant move for a continuance in...