People v. Dumas

• Decision Date: 02 December 1980
• Docket Number: Docket No. 45950
• Citation: 102 Mich.App. 196,301 N.W.2d 849
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Otis Lemmer DUMAS, Defendant-Appellant. 102 Mich.App. 196, 301 N.W.2d 849
• Court: Court of Appeal of Michigan — District of US

Page 849

301 N.W.2d 849

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Otis Lemmer DUMAS, Defendant-Appellant.

Docket No. 45950.

102 Mich.App. 196, 301 N.W.2d 849

Court of Appeals of Michigan.

Dec. 2, 1980.

Released for Publication Feb. 20, 1981.

[102 MICHAPP 198] George S. Buth, Grand Rapids, for appellant-defendant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., David H. Sawyer, Pros. Atty., Carol S. Irons, Asst. Pros. Atty., for plaintiff-appellee.

Before CAVANAGH, P. J., and KELLY and BEASLEY, JJ.

KELLY, Judge.

On February 28, 1979, defendant, Otis Dumas, was convicted by a jury of breaking and entering, contrary to M.C.L. § 750.110; M.S.A. § 28.305. From this conviction he appeals of right and raises two issues.

The conviction arose out of an incident occurring in a Kentwood hotel room occupied by Adrian Licciardi and Robert Mitchell in the early morning hours of November 5, 1978. Licciardi testified that at about 6 a. m. he observed a person enter the room, look through some clothing and remove his (Licciardi's) wallet. Licciardi then jumped up from his bed, which frightened the intruder and caused him to drop the wallet. The intruder then ran out of the room. Licciardi and Mitchell, who also awoke in time to see the intruder run from the room, gave immediate chase but were unable to [102 MICHAPP 199] catch him. They then called police. Both men testified they saw defendant's face from a distance of 5 to 10 or 15 yards respectively.

Upon his arrival at the hotel, Kentwood police officer Thomas Zimmerson was directed by Licciardi and Mitchell to a green and yellow station wagon, the only vehicle in the hotel parking lot without dew on it. The car was also found to have a warm engine compartment and the keys were in the ignition. Zimmerson checked the vehicle's registration and was informed that it belonged to the defendant. Zimmerson then summoned a Detective Harrington to the scene. While at the hotel, Harrington conducted a photographic identification, during which Licciardi and Mitchell picked defendant out of seven or eight pictures. Licciardi described the man as wearing blue jeans, a brown turtle neck sweater and a blue jean jacket.

Shortly after the identification, defendant, then dressed in a pair of slacks and button-down sweater, walked around the corner of the building. Both Licciardi and Mitchell immediately identified defendant as the man who had entered their room.

During trial, defense counsel made and renewed a motion for a mistrial, arguing that the photographic identification had impermissibly tainted Licciardi's in-court identification of defendant. The court then ordered Licciardi recalled for testimony on the independent basis of the identification. Licciardi testified, out of the jury's presence, that he was initially undecided between two of the photographs, and that the photograph of the defendant assisted him in being able to identify defendant at the scene and at trial. On further questioning by the prosecutor, Licciardi again admitted that the photograph helped him make the identification at the scene. However, he also [102 MICHAPP 200] claimed that his in-court identification did not depend on the photograph.

On appeal defendant argues that the trial court reversibly erred in permitting Licciardi and Mitchell to make in-court identifications of him, following an allegedly improper photographic identification. Defendant urges that his known ownership of the green and yellow station wagon and the circumstances of the breaking and entering required his formal arrest and a corporeal line-up for identification.

Photographic showups, due to their potential effect on eyewitness identifications, have been strictly limited in their application. In People v. Franklin Anderson, 389 Mich. 155, 186-187, 205 N.W.2d 461 (1973), the Supreme Court established two basic rules governing such investigatory procedures:

"1. Subject to certain exceptions, identification by photograph should not be used where the accused is in custody.

"2. Where there is a legitimate reason to use photographs for identification of an in-custody accused, he has the right to counsel as much as he would for corporeal identification procedures." (Emphasis in original; footnotes deleted.)

See also, People v. Jackson, 391 Mich. 323, 217 N.W.2d 22 (1974), and People v. Currelley, 99 Mich.App. 561, 297 N.W.2d 924 (1980). Subsequent panels of this Court have applied more restrictive limitations on the use of photographic showups, by prohibiting their use in cases where a suspect is "readily available" for or can be "readily produced" at a corporeal lineup. People v. McNeill, 81 Mich.App. 368, 265 N.W.2d 334 (1978), People v. Smalls, 61 Mich.App. 53, 232 N.W.2d 298 (1975), [102 MICHAPP 201] People v. Beasley, 55 Mich.App. 583, 223 N.W.2d 77 (1974).

Although various opinions of this Court have differed as to what circumstances will constitute reasonable availability for appearance at a corporeal lineup, there is at least uniform agreement that probable cause to arrest is sufficient. See People v. Hoerl, 88 Mich.App. 693, 700, fn. 4, 278 N.W.2d 721 (1979), and People v. McNeill, supra, 81 Mich.App. 368, 377, 265 N.W.2d 334, finding defendant not readily available where "the police had no legal means * * * to force defendant to participate in the corporeal lineup".

If the facts and circumstances surrounding a criminal act would lead a reasonably prudent person to believe a felony was committed and that a certain individual was the perpetrator of the offense, probable cause to arrest exists. People v. Lynn, 91 Mich.App. 117, 122, 283 N.W.2d 664 (1979), lv.gtd. 407 Mich. 902 (1979), People v. Thatcher, 83 Mich.App. 527, 269 N.W.2d 210 (1978). In the instant case, at the time of the photographic identification session, the extent of information linking defendant to the breaking and entering was the presence of his car in the motel parking lot, a warm engine, and the fact that the car keys were in the ignition. The witnesses' limited descriptions of the intruder were also provided. These facts do not suggest probable cause for arrest and thus would not mandate defendant's presence at a corporeal lineup. ¹ Additionally, defendant was not [102 MICHAPP 202] subject to the elements of police control found to constitute ready availability in People v. Smalls, supra (defendant released on bond for a pending similar offense) and People v. Beasley, supra (defendant out on bond).

We decline to extend the rule of Franklin Anderson to the pre-custody, pre-interrogation, mere suspicion phase of defendant's investigation. As noted in People v. Lee, 391 Mich. 618, 625, 218 N.W.2d 655 (1974):

"It is not feasible to require appointment of counsel in cases of pre-custody photographic showups where there is no detention of the defendant since under such a rule each...