People v. Curry

• Citation: 227 N.W.2d 254,58 Mich.App. 212
• Decision Date: 29 January 1975
• Docket Number: No. 2,17961 and 19199--200,19197--8,Docket Nos. 17853,2
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Dwight D. CURRY and Edward L. Jenkins, Defendants-Appellants
• Court: Court of Appeal of Michigan (US)

Page 254

227 N.W.2d 254

58 Mich.App. 212

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Dwight D. CURRY and Edward L. Jenkins, Defendants-Appellants.

Docket Nos. 17853, 19197--8, 17961 and 19199--200.

Court of Appeals of Michigan, Division No. 2.

Jan. 29, 1975.

Released for Publication April 4, 1975.

Washtenaw County Public Defender, Ann Arbor, for defendants-appellants.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William F. Delhey, Pros. Atty., for plaintiff-appellee.

Before DANHOF, P.J., and BASHARA and ALLEN, JJ.

PER CURIAM.

Defendants were convicted by a jury of two counts of armed robbery, M.C.L.A. § 750.529; M.S.A. § 28.797; kidnapping, M.C.L.A. § 750.349; M.S.A. § 28.581 and extortion, M.C.L.A. § 750.213; M.S.A. § 28.410. They were both sentenced to serve concurrent terms of 15 to 40 years for each of the armed robberies and for kidnapping, and 13 to 20 years for extortion.

At approximately 8 p.m. on January 7, 1972, a driver for an Ann Arbor pizzeria, Daniel Campbell, was making a delivery when he was confronted by two men armed with a rifle and a handgun. These men were later identified by Campbell as the defendants. Campbell was ordered into the back seat of the delivery car, and about $38 was taken from him. The car was driven to a secluded field where he was taken from the back seat, tied with a rope, and locked in the trunk of the car with a small rat. The defendants proceeded in the pizza delivery car to the home of a manager of a local large chain grocery store. Using the pizzas taken from the delivery car, and while still armed, they gained entrance into the home where the store manager's wife was alone with their two daughters. They forced the wife to call her husband at the store, and they demanded that he leave $2000 in a trash receptacle at a nearby apartment complex. They tied up the woman and the children, ransacked the house, took various guns and other property, and left in the family car. The car was later discovered abandoned by the Ann Arbor police, and found to contain the stolen guns and two pizzas. Fingerprints found on the pizza boxes matched those of defendant Jenkins.

The store manager notified the police, and they apprehended two men, who later implicated the defendants, while they were rummaging in the trash receptacle in which the money had been placed. Following his release from the trunk of the pizza delivery car later that night, Campbell was shown a group of ten photographs at about 11 p.m. He picked out a photograph of defendant Curry. Another group of photographs was shown to Campbell at about 2 a.m. after the defendants had been arrested. Campbell recognized photographs of both defendants at the second display. At trial, Campbell positively identified both defendants, and he was permitted to testify, over defendants' objection, to his recognition of the defendants at the two previous photographic showings. Defendants now claim that this was error. We disagree.

Defendants argue that, under the rules promulgated by People v. Anderson, 389 Mich. 155, 205 N.W.2d 461 (1973), the second photographic showing, held after they were in custody, was improper, and reference to it should not have been allowed at trial. They also argue that they were entitled to the presence of counsel at the second photographic lineup, and that it was error to admit the in-court identification testimony of witness Campbell which had been tainted by these illegal proceedings.

The defendants are correct when they cite People v. Anderson, Supra, for the rule that photographic identification should not be used where the accused is in custody. However, it has been repeatedly held that this rule is not retroactive. People v. Duke, 50 Mich.App. 714, 213 N.W.2d 769 (1973); People v. Edwards, 55 Mich.App. 256, 222 N.W.2d 203 (1974); People v. McBride, 55 Mich.App. 234, 222 N.W.2d 195 (1974); People v. Kennington, 55 Mich.App. 61, 222 N.W.2d 34 (1974). Trial in the present case was concluded prior to the release of the decision in Anderson. Thus, the holding in that case will not be applied to these defendants.

Defendants are also correct in maintaining that, under Anderson, supra, once they were in custody, they had a right to counsel at the photographic showings, and that failure to provide counsel was error. People v. Jackson, 391 Mich. 323, 217 N.W.2d 22 (1974); People v. Anderson, 391 Mich. 419, 216 N.W.2d 780 (1974). However, even though it was error to conduct these photographic showings without counsel present, it is well settled that this will not render inadmissible later in-court identification testimony if that testimony has a basis independent of the tainted photographic display procedures. People v. Anderson, Supra; People v. Anderson, Supra; People v. Duke, Supra; People v. McBride, Supra; People v. Edwards, Supra.

The delivery driver, Daniel Campbell, had ample opportunity to observe the defendants when they first accosted him in the apartment complex parking lot. He sat in the back seat while the defendants sat in the front seat of the delivery car and drove him to a secluded area where he was tied up and locked in the trunk. While these events were transpiring he was able to clearly see the defendants who wore no masks and made little effort to conceal their features. Campbell positively identified defendant Curry at the first properly conducted...