People v. Council

• Decision Date: 27 October 1971
• Docket Number: Docket No. 10678,No. 3,3
• Citation: 36 Mich.App. 682,194 N.W.2d 34
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Pete COUNCIL, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 34

194 N.W.2d 34

36 Mich.App. 682

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Pete COUNCIL, Defendant-Appellant.

Docket No. 10678.

Court of Appeals of Michigan, Division No. 3.

Oct. 27, 1971.

Released for Publication Feb. 11, 1972.

William O. Lagoni, Killian, Spelman, Taglia, Meek, Lagoni & Burdick, St. Joseph, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Ronald J. Taylor, Pros. Atty., for plaintiff-appellee.

Before FITZGERALD, P.J., and BRONSON and T. M. BURNS, JJ.

PER CURIAM.

Defendant was convicted by a jury of the crime of robbery armed. ¹ He was subsequently sentenced to a term of 30 to 40 years imprisonment. Defendant's motion for a new trial was denied and this appeal followed.

On January 1, 1970, a person entered a gas station in Berrien County, Michigan, and used the public telephone. Gary Cecci, the station attendant, overheard that individual say to whomever he was calling that he had been in a fight the night before and had gone to Mercy Hospital for treatment on his nose and that he had been 'busted open'. Shortly thereafter, the man pulled a gun, pointed it at Mr. Cecci, and robbed the station of approximately $150.

Immediately after the robbery, Mr. Cecci informed the police of the robbery and told them what he had heard the person say while using the telephone. The complaining witness had about 1 1/2 to 2 minutes to observe the person who robbed the station and noticed that that person had three bandaids across his nose, three bandaids on his forehead, and some bandages on his chin.

Two or three days after the robbery, the complaining witness was shown about eight to ten photographs and apparently picked the defendant's photograph from them. Sometime later, the complaining witness was shown recent pictures of the defendant in which he had scars on either side of his nose and about the same location as the bandaids had been on the person who did the robbery. The witness positively identified the defendant as the robber.

Mr. Cecci testified at trial that the robber didn't have a beard or mustache and had a part in his hair. The defendant, testifying in his own behalf, said that on January 1, 1970, he had a mustache and didn't have a part in his hair. Mr. George Washington, a barber, who had cut the defendant's hair between January 1, 1970, and January 5, 1970, testified that prior to January 5, 1970, the defendant didn't have a part in his hair and that he had a mustache.

Mrs. Teola Johnson, testifying on defendant's behalf, stated that on January 1, 1970, defendant's eyes were 'swollen bad' and that his left eye was 'practically swollen closed'. She also related that the defendant didn't have a part in his hair on January 1, 1970, and did have a mustache.

The jury, apparently believing the complaining witness's testimony, found the defendant guilty. This appeal followed, raising two assignments of error.

On appeal, defendant contends that the pretrial identification of the defendant by means of photographs was so necessarily suggestive and conducive to misidentification that it tainted subsequent in-court identification.

In Simmons v. United States (1968), 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247, 1253), the United States Supreme Court addressed itself to the instant issue:

'We hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. This standard accords with our resolution of a similar issue in Stovall v. Denno (1967), 388 U.S. 293, 301, 302, 87 S.Ct. 1967, 1972--1973, 18 L.Ed.2d 1199, 1206), and with decisions of other courts on the question of identification by photograph.'

In the present case, the pretrial photographic identification procedure, scrutinized in light of the totality of the surrounding circumstances, does not give rise to substantial likelihood of irreparable misidentification. Because the procedure was not so unduly prejudicial as to wholly taint the...