People v. Belenor, Docket No. 26516
| Decision Date | 24 August 1976 |
| Docket Number | Docket No. 26516 |
| Citation | 246 N.W.2d 355,71 Mich.App. 10 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard BELENOR, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Dobbins & Schaeffer by J. Thomas Schaeffer, Marshall, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., John J. Rae, Pros. Atty., for plaintiff-appellee.
Before R. B. BURNS, P.J., and KELLY and HUGHES, * JJ.
Defendant appeals his conviction of first-degree (felony) murder, M.C.L.A. § 750.316; M.S.A. § 28.548, and armed robbery, M.C.L.A. § 750.529; M.S.A. § 28.797, for his part as one of three assailants in a May 18, 1971 incident at the Corner Post Restaurant in Battle Creek, Michigan.
Defendant's primary allegation on appeal is that his in-court identification as a perpetrator of the crime was so tainted by unnecessarily suggestive pretrial identification procedures that he should be awarded a new trial, or that, at the least, the case be remanded for an evidentiary hearing to determine if an independent basis existed for the subsequent in-court identifications.
Four witnesses were variously involved in the identification of defendant: Martha Cammauf, a customer at the restaurant; Myrle Potter, a customer and husband of the murder victim; Penny Burton, a waitress; and Mary Ann LeClear, a dishwasher. All of the witnesses but Ms. LeClear attended three corporeal lineups displaying various suspects and held on May 19, May 28, and June 15, 1971. Defendant who only displayed at the last lineup. All four of the witnesses viewed this lineup but none identified defendant; two of them had mistakenly identified nonsuspects at prior lineups.
All four witnesses had been shown the same group of 15 photographs on either May 21 or May 25. Witness Cammauf found 'similarities' between two photographs, one of which was of defendant, and the participants in the crime. Witnesses Burton and LeClear picked out defendant's photograph and said they saw certain similarities. Witness Potter, the last to view the pictures, was unable to identify anyone notwithstanding the fact that the photograph of defendant was specifically brought to his attention. All of the above-mentioned procedures were precustodial.
Defendant's preliminary examination was held on October 15, 1971. Defendant and one codefendant were dressed in prison garb and were the only black males in the courtroom. Witness Cammauf was still unable to identify defendant. Witnesses Burton and Potter, however, positively identified defendant as the man who had shot the victim. This testimony was repeated at trial and joined by that of Ms. LeClear (Ms. Cammauf had died in the interim).
Defendant's objection concerning this involved identification chronology is essentially two-fold: first, that the photographic identification procedure was so impermissibly suggestive as to violate due process and to taint the subsequent in-court identifications; and second, that the preliminary examination itself was similarly impermissibly suggestive with equal effect.
The trial court held an evidentiary hearing outside the presence of the jury and determined that the photographic identification procedure was not impermissibly suggestive. Of the same group of 15 pictures shown to each witness, 13 were 'mugshots' and the remaining 2 were snapshots. The defendant's picture was one of the 13 mugshots. We think it obvious that the manner of this procedure was sufficiently 'neutral'.
Most significantly, it does not require an abundance of common sense to realize that any possible 'suggestiveness' in the photographic display totally failed to register with the witnesses. The photographis were shown over two weeks Before the corporeal lineup in which all four witnesses Failed to identify defendant. The conclusion that this procedure was not unduly suggestive is compelling. A remand is thus unnecessary. People...
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...defendant and 10 other black males of like age. The character of this procedure was sufficiently neutral. People v. Belenor, 71 Mich.App. 10, 13, 246 N.W.2d 355 (1976). Similarly, we note that the lineup, at which counsel was present, was conducted three weeks after the crime occurred, time......
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...she had plenty of time to see the defendant clearly during the crime itself. As such, this case is controlled by People v. Belenor, 71 Mich.App. 10, 246 N.W.2d 355 (1976), rev'd on other grounds 408 Mich. 244, 289 N.W.2d 719 (1980), and People v. Manuel Johnson, 58 Mich.App. 347, 227 N.W.2d......
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