People v. Cotton

• Decision Date: 25 February 1972
• Docket Number: No. 1,Docket No. 11988,1
• Citation: People v. Cotton, 38 Mich.App. 763, 197 N.W.2d 90 (Mich. App. 1972)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jesse Earl COTTON, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 90

197 N.W.2d 90

38 Mich.App. 763

PEOPLE of the State of Michigan, Plaintiff-Appellee, v.Jesse Earl COTTON, Defendant-Appellant.

Docket No. 11988.

Court of Appeals of Michigan, Division No. 1.

Feb. 25, 1972.

Released for Publication May 12, 1972.

Arthur J. Tarnow, State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol.Gen., William L. Cahalan, Pros.Atty., dominick R. Carnovale, Chief, Appellate Div., Michael R. Mueller, Asst. Pros.Atty., ifor plaintiff-appellee.

Before V. J. BRENNAN, P.J., and J. H. GILLIS and VanVALKENBURG, ^* JJ.

J. H. GILLIS, Judge.

Defendant was convicted by a jury of armed robbery, M.C.L.A. § 750.529;M.S.A. § 28.797, and sentenced to serve 7 1/2 to 20 years in prison.He now brings this delayed appeal.

On September 12, 1967 a man entered a Detroit branch office of Associate Finance Company, walked up to a teller's window serviced by one Cecilia (DesMarais) Hill, gave her a paper bag, and demanded money.Mrs. Gayle (Fortner) Stefanski, the cashier at a neighboring window, stated that she saw her cohort hand a paper bag over the counter to the defendant.The manager of the office, having also observed the transaction, gave chase unsuccessfully.Keith Benning, another witness for the prosecution, testified to the following: On September 12, 1967, he was sitting in a truck which was parked near the finance company when a 1966 shiny red Ford Galaxie 500 pulled up in front of him and stopped; leaving the motor running, the driver got out, kicked the tire, and got back in, whereupon another man ran out of the alley, jumped into the car and they sped off; he did not see the running man's face; however, he did notice that the rear license plate was hanging from a piece of wire; he noted the license number of the car.¹Joseph Sweeney, of the Detroit Police Department, stated that he had received a radio description of the car allegedly involved in the robbery and recalled having seen such a car in his patrol area.The day after the robbery he spotted the car, and arrested the driver, who is the defendant in this case.The car was seized by the police.

The same day the defendant was arrested, Mrs. Hill, Mr. Benning and the manager of the finance company came down to the police station for the purpose of attempting to identify the accused at a lineup.²The lineups were conducted separately with defendant being represented by counsel at each.The results of the showups were as follows: Both the manager and Mrs. Hill were unable to identify the defendant and, in fact, made incorrect identifications; Mr. Benning failed to make any identification.However, Mr. Benning, prior to the showup, did identify the car in custody as the same one he had observed the day of the robbery, while Mrs. Hill subsequently identified the defendant at the preliminary examination and then proceeded to make an in-court identification at trial.³

On September 14, 1967(the morning following the unsuccessful lineup identifications), defendant was released from custody though his car was retained by the police.Subsequently, Mrs. Stefanski identified the defendant from a group of five or six photographs shown to her by the police without defendant's counsel being present.⁴Responding to a message left at his home by police, defendant voluntarily returned to the police station on September 18, 1967, to get his car.He was then held at the station and placed in a lineup where he was identified by Mrs. Stefanski, and rearrested.Defendant was represented by counsel at this lineup.Mrs. Stefanski subsequently made an in-court identification of defendant.

Three issues are raised on appeal, only one of which merits discussion.Defendant questions, for the first time on appeal (no objection being made before or during trial), the propriety of the pretrial photographic identification; specifically defendant's failure to be represented by counsel during said proceeding.At the outset it must be noted that counsel's failure to object at trial to a pretrial identification procedure does not preclude appellate review of an alleged violation of a constitutional right.People v. Schumacher, 29 Mich.App. 594, 185 N.W.2d 633(1971);People v. Hartwick, 8 Mich.App. 193, 154 N.W.2d 24(1967).Addressing ourselves to the question of an accused's right to counsel during a pretrial photographic identification, we find the problem not an entirely foreign one to this Court.In 2 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 582 (1971 Cum.Supp.), p. 45, it is stated:

'The constitutional right of the defendant to the presence of counsel at all critical stages of the pretrial proceedings includes a right to counsel at the 'identification parade' or lineup and at photographic identification.'⁵

In People v. Rowell, 14 Mich.App. 190, 198, 165 N.W.2d 423, 427(1968), one of the judges in his concurring opinion said:

'The photographic identification stage is as critical as the line-up stage, perhaps more so.The danger of misidentification at the photographic identification stage is as great, perhaps greater.Just as the facts and circumstances of a line-up identification cannot be readily reconstructed at trial (United States v. Wade(1967), 388 U.S. 218, 230--232, 87 S.Ct. 1926, 1934--1935, 18 L.Ed.2d 1149, 1159--1160andGilbert v. California(1967), 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, so too the facts and circumstances of a photographic identification preceding the line-up cannot later be readily reconstructed.'

Again, this Court in a footnote to People v. Thomas, 36 Mich.App. 190, 193, 193 N.W.2d 328, 330(1971), citedUnited States v. Zeiler, 427 F.2d 1305, 1307(CA 3, 1970), as holding 'that the rule of the Wade case(guaranteeing the right of counsel at a lineup) applies to pretrial photographic identifications of an accused who is in custody.'⁶

In light of the preceding authority, we hold that an accused being held in custody is entitled to be represented by counsel at any photographic identification proceeding.However, when the accused is not in custody a different situation is presented.The above-cited decisions, which have afforded a defendant the right to counsel at such a proceeding, have limited this right to situations where the accused is in custody at the time.There is good reason for the distinction.Initial identification by photograph has been widely and effectively used in law enforcement.The display of photographs has proven to be a valuable tool in apprehending offenders while at the same time 'sparing innocent suspects the ignominy of arrest by allowing eyewitnesses to exonerate them through scrutiny of photographs.'Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247(1968).Properly conducted precustody photographic identifications are both necessary and desirable and should not be discouraged.

However, just as our Court has recognized situations under the concept of 'custodial interrogations' when an accused is entitled to his Miranda warnings though not technically under arrest, likewise, we cannot exclude the possibility that under unusual circumstances a suspect may have a right to counsel during a pretrial photographic identification though at the time he is not in custody.In People v. Adams, 19 Mich.App. 131, 172 N.W.2d 547(1969), the Court, in indicating that the pretrial photographic identification stage is as critical as the lineup stage, goes on to suggest that One upon whom an investigation has focused is entitled to be represented by counsel at the time photographs are exhibited.Again, our Court in People v. Hutton, 21 Mich.App. 312, 175 N.W.2d 860(1970), in discussing the dividing line between those pretrial identifications which do and do not require the presence of counsel, expressed its agreement with the following views of Judge Friendly in United States v. Davis, 399 F.2d 948, 952(CA 2, 1968):

'A clue to the dividing line may be furnished by the Court's repeated use of the term 'accused' and its reference in Wade, 388 U.S. at p. 225, 87 S.Ct. 1926, 18 L.Ed.2d 1149, to Escobedo v. State of Illinois(1964), 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977.We have particularly in mind the passage in that opinion, 378 U.S. at pp. 485, 486, 84 S.Ct. at p. 1762, 12 L.Ed.2d 983:

"(T)he investigation had ceased to be a general...