People v. Childers

• Decision Date: 09 December 1969
• Docket Number: 5277,No. 3,Docket Nos. 5255,3
• Citation: 174 N.W.2d 565,20 Mich.App. 639
• Parties: PEOPLE of the State of Michigan, Plaintiffs-Appellees, v. Dennis Earl CHILDERS, Defendant-Appellant, Jerome Lawson, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 565

174 N.W.2d 565

20 Mich.App. 639

PEOPLE of the State of Michigan, Plaintiffs-Appellees, v. Dennis Earl CHILDERS, Defendant-Appellant, Jerome Lawson, Defendant-Appellant.

Docket Nos. 5255, 5277.

Court of Appeals of Michigan, Division No. 3.

Dec. 9, 1969.

Released for Publication March 4, 1970.

James J. Kobza, Kobza & Kobza, Muskegon for Dennis Earl childers.

Thomas J. O'Toole, O'Toole & Jacobi, Muskegon, for Jerome Lawson.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Paul M. Ladas, Pros. Atty., Muskegon, for plaintiffs appellees.

Before J. H. GILLIS, P.J., and R. B. BURNS and V. J. BRENNAN, JJ.

V. J. BRENNAN, Judge.

Defendants Jerome Lawson and Dennis Childers were tried by a jury and convicted of armed robbery ¹ on January 12, 1968. On appeal they raise two questions common to each, the principal one involving an application of the rules announced in United States v. Wade (1967), 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149. Gilbert v. California (1967), 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 and Stovall v. Denno (1967), 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199.

Around ten-thirty in the evening of October 9, 1967, an Indiana resident named Harold Schreiber pulled into Moore's Sinclair Service on the corner of Spring Street and Muskegon Avenue in Muskegon for gasoline. After returning from the station office where he had paid for the gasoline, and while standing between the pumps of his car, he was approached by two young men, one seizing his arms from behind, the other standing before him with a pistol. The station attendant, a certain Frank Keenan, seeing Schreiber forcibly held, rushed out of the station and demanded that Schreiber be released. The man holding Schreiber's arms reached into Schreiber's pocket, took his billfold, and then shoved the victim in Keenan's direction, knocking Keenan down. The gunman fired at Keenan, missed, and took off running with his accomplice. A second shot was fired when the gunman was hit by a can of oil thrown by Keenan. The robbers fled.

An officer Jurkas of the Muskegon police department visited Keenan at his home the following day and showed him photographs of 25 to 30 different persons. From these, Keenan picked out Jerome Lawson's photograph and identified him as the gunman. Later that day officer Jurkas arrested Lawson, told him that 'he had a right to have an attorney' and that 'he had a right to have one present during the time of his questioning,' and then took him to Keenan's house, where, after a confrontation, Keenan confirmed his identification. Several days later, Keenan saw Dennis Childers standing at the curb in front of his house, talking to two or three other persons. Recognizing him as the man who had held Schreiber, Keenan phoned the police, but did not pursue the matter after he was told that officer Jurkas was not on duty. Childers drove away after a few minutes. Several days later Keenan picked out Childers' picture from a second group of photographs, and on October 26, officer Jurkas arrested Childers. Following the procedure used with Lawson, Jurkas told Childers that 'he had a right to an attorney' and that 'he had a right to have (an attorney) present during this time of his questioning' and then took him to Keenan's house, where Keenan identified him as the second man.

At the trial, Keenan related the events of the robbery and photographic identification, and positively identified both defendants. He then corroborated the in-court identification by testifying that he had seen the defendants previous to the robbery, although he had not known their names. According to Keenan, Childers had been a front-seat passenger in a car that pulled in for gas in the afternoon of the day the robbery occurred. Although a passenger, Childers had paid the fifty-cent purchase price. The same car returned about seven that evening with both Lawson and Childers as passengers. Keenan gave the driver permission to work on the car in the station garage on the condition that his passengers, including Lawson and Childers, leave the premises, which they did. Keenan also testified that the defendants had bought cigarettes in the station on several occasions and that he had seen both of them several times in a local grocery. The prosecution elicited only one remark from Keenan concerning his identification of the defendants at the confrontations--that officer Jurkas brought the defendants to his house. A full account of the confrontations was placed before the jury, however, when officer Jurkas took the stand.

The remaining evidence of guilt was Schreiber's testimony that Lawson 'resembled' the gunman. At the close of the prosecution's proofs, the individual trial counsel moved for dismissal of the charges, contending that the absence of counsel at the confrontations rendered all evidence dealing with the identification of the defendants inadmissible. The trial court considered the motions on their merits and denied them on the ground that the requirements of United States v. Wade, Supra, were met when officer Jurkas advised the defendants of their right to counsel. On appeal the defendants reassert that both Keenan's in-court identification and all evidence of his extra-judicial identification were inadmissible. No claim is made that the confrontations were 'so unnecessarily suggestive and conducive to irreparable mistaken identification that the defendants were denied due process of law.' See Stovall v. Denno, Supra.

It should be noted at the outset that the defendants' trial counsel, by waiting until the close of the prosecution's proofs to object to the admission of evidence which they should have known was subject to constitutional attack, may well have acquiesced to damage that can be undone only by granting a new trial. Yet, the State's interest in avoiding a new trial in such cases, to say nothing of its interest in an orderly trial without unexpected but avoidable delay, justifies the refusal by both trial and appellate courts to consider certain constitutional claims that are raised in an untimely manner. See, People v. Wilson (1967), 8 Mich.App. 651, 155 N.W.2d 210. Among these claims, we think, are those arising under Wade and companion cases. Thus, the procedure to be followed in raising Wade claims and preserving them for review is that announced in People v. Heibel (1943), 305 Mich. 710, 9 N.W.2d 826 and People v. Ferguson (1965), 376 Mich. 90, 135 N.W.2d 357 for raising the analogous claim of illegal search and seizure:

1) Where the factual circumstances constituting the illegal confrontation are known to the defendant in advance of trial, the defendant is responsible for communicating them to his lawyer and his lawyer, in turn, is responsible for making a motion to suppress in advance of trial.

2) Where the factual circumstances constituting the illegal confrontation are unknown to the defendant in advance of trial, or where other 'special circumstances' make a pretrial motion impossible, the motion to suppress may be made during trial.

3) In either event, once the claim of illegal confrontation is raised, an evidentiary hearing must be held to determine the merits of the claim, and this hearing must be held outside the presence of the jury.

Although the procedure for raising the claims of illegal search and seizure and invalid confession ² is well-established in Michigan, and therefore analogy as well as common-sense indicated the need for timely objection in the present case, the above guidelines were yet to be set forth at the time of trial. In view of their nonexistence at the time of trial, and because a remand for an evidentiary hearing is made unnecessary by a complete record, we proceed to consider the merits of the defendants' Wade claim, despite the absence of timely objection.

After enunciating the right to counsel at pretrial confrontations, the Supreme Court in Wade and companion cases fashioned certain exclusionary rules to ensure the recognition of the right. Under these rules, once it is established that the accused was denied the benefit of counsel, all evidence that the witness identified the accused at the confrontation is to be excluded. Gilbert v. California, Supra, 388 U.S., at 273, 87 S.Ct., at 1957, 18 L.Ed.2d, at 1186. Not all evidence bearing on the identity of the perpetrator of the crime is rendered inadmissible by this Per se exclusionary rule, however. An in-court identification may still be made if, but only if, the prosecution is able to 'establish by clear and convincing evidence that the in-court identification (is based) upon observations of the suspect other than the lineup identification.' Wade, 388 U.S., at 240, 87 S.Ct., at 1939, 18 L.Ed.2d, at 1164. The test to be used in determining whether the in-court identification can be made independently of the confrontation is that of Wong Sun v. United States (1963), 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441:

'Whether, 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.'

And among the factors to be considered in applying this test are,

'The prior opportunity to observe the alleged criminal act, the existence of any discrepancy between any pre-lineup description, and the defendant's actual description, any identification prior to lineup of another person, the identification by picture of the defendant prior to the lineup, failure to identify the defendant on a prior occasion, and the lapse of time between the alleged act and the lineup identification. It is also relevant to consider those facts which, despite the absence of counsel, are disclosed concerning the conduct of the lineup.' Wade, 388 U.S. at 241, 87 S.Ct. at 1940, 18 L.Ed.2d 1165.

Finally, neither the admission of evidence that the witness identified the accused at...