People v. DuPuie
| Decision Date | 19 February 1971 |
| Docket Number | No. 1,Docket Nos. 9083,9220,1 |
| Citation | 31 Mich.App. 14,187 N.W.2d 260 |
| Parties | The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William DuPUIE, Defendant-Appellant. The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James C. PAYNE, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
Charles Burke, Detroit, for William DuPuie.
Oliver C. Nelson, Detroit, for James C. Payne.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Angelo A. Pentolino, Asst. Pros. Atty., for appellee.
Before R. B. BURNS, P.J., and J. H. GILLIS and DANHOF, JJ.
Two armed men broke into an apartment occupied by Nathan and Dorothy Lefkowitz. They forced Mr. and Mrs. Lefkowitz into the bedroom where they taped them and compelled them to lie on the floor. The shorter of the intruders was wearing a Halloween-type mask while the other's face was clearly visible. The shorter one rifled through some bureau drawers, took an envelope containing approximately $1,000, and then fled the apartment with the other man.
At the time the two men broke in Mrs. Lefkowitz was talking on the telephone with the apartment manager. When the two broke in she uttered an exclamation and dropped the phone and the apartment manager became suspicious. The manager then called Carl Lindberg, a Michigan state trooper living in the same apartment complex, and asked him to investigate. Lindberg arrived as the two men were fleeing the apartment and one of them shot and killed him.
Defendants were both charged with and convicted of the crime of first-degree murder. 1
On the Tuesday following the crime, the police showed photographs to Mr. and Mrs. Lefkowitz for the purpose of identifying the two men. They were unable to identify them from the photographs. Subsequently on Friday, the Detroit News published a copy of one of the pictures shown to them, along with a story stating that a warrant had been issued for defendant DuPuie. That evening a similar story and photograph appeared on television. Mrs. Lefkowitz testified at trial that while the pictures on television and in the newspapers were the same as the ones that were shown to her by the police, she was unable to identify DuPuie in any of them. The next morning the police conducted a showup at the station in the presence of counsel. Mrs. Lefkowitz was unable to identify defendant DuPuie at that time.
A second showup was conducted on October 13, 1970. It was at this showup that Payne was identified by both Mr. and Mrs. Lefkowitz. Counsel was also present at this showup.
At trial Mrs. Lefkowitz testified to all of the above events. Her testimony was unclear, contradictory, and rather uncertain. However, Mr. Lefkowitz had identified DuPuie at the first lineup and later in court. DuPuie's fingerprints were found on an envelope taken from the premises. Because Mrs. Lefkowitz's testimony was so uncertain, counsel moved to strike it from the record and to instruct the jury to disregard it. The motion was denied and counsel assigns this denial as error on appeal.
The jury, as the sole judge of credibility, was properly allowed to weigh Mrs. Lefkowitz's testimony as long as it was admissible. Counsel was present and the lineup was properly conducted. 2 The lineup procedure being unassailable, the next question becomes whether or not the identification at the lineup was based on the prior showing of the photographs and if so whether the prior showing of the photographs was, in the words of Simmons v. United States (1968), 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, 'so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.'
The identification at DuPuie's lineup was Not based on the prior photographic identificatiion. Even if it had been, there is no showing that the circumstances surrounding the photographic identification procedure was so 'impermissibly suggestive'...
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