People v. Flippo

• Court: Court of Appeal of Michigan
• Writing for the Court: PAPP
• Citation: People v. Flippo, 247 N.W.2d 321, 70 Mich.App. 652 (Mich. App. 1976)
• Decision Date: 23 August 1976
• Docket Number: Docket No. 23145
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Anthony FLIPPO, Defendant-Appellant.

Page 321

247 N.W.2d 321

70 Mich.App. 652

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Anthony FLIPPO, Defendant-Appellant.

Docket No. 23145.

Court of Appeals of Michigan.

Aug. 23, 1976.

Released for Publication Dec. 14, 1976.

Richard L. Roble, Adrian, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Harvey A. Koselka, Pros. Atty., for appellee.

Before NALLEN, P.J., and D. E. HOLBROOK, Jr., and PAPP, ^* JJ.

PAPP, Judge.

Defendant was charged with breaking and entering a dwelling house with the intent to commit larceny in violation of M.C.L.A. § 750.110; M.S.A. § 28.305. He was convicted by a jury in the county of Lenawee, on November 13, 1974, ¹ and was sentenced by the Honorable Rex B. Martin, to 30 days in the county jail and 5 years on probation. The defendant appeals by right.

Defendant raises three issues: 1. that a pre-custody phtographic line-up without counsel was improper after the investigation had focused on defendant; 2. that the in-court identification did not have an independent basis from the photographic identification; 3. that the verdict was against the great weight of the evidence. No motion for new trial was made by the defendant.

Prior to trial, after defendant's preliminary examination, defendant moved to have the complaining witness' in-court identification suppressed, claiming violation of an alleged right to have an attorney present when a pre-custody photographic identification proceeding was conducted, particularly when he was the prime suspect. In his argument before the magistrate, defendant cited People v. Martin, 37 Mich.App. 621, 194 N.W.2d 909 (1972), remanded 387 Mich. 766, 195 N.W.2d 766 (1972), wherein this Court held that the constitutional right to have counsel present at a photographic identification does not attach until the accusatory stage is reached in the investigation of a crime. The magistrate rejected defendant's contention that counsel should have been present at the photographic display, saying:

'Well surely we hadn't reached that yet. We had the hunch of a detective who labeled it as sufficient or labeled the defendant as a suspect when really he wasn't able to accuse the defendant at that time. So what the court really interprets that testimony is as labeling the defendant as truly a suspect as the court notes it or the attorney notes it. It was a hunch on his part. The court does reject the motion of defendant.'

Further, the magistrate stated in denying defendant's motion:

'We don't have any showing that it was suggestive of photographs or suggestive presentations made to create a misidentification. It appears that after taking the testimony of the complaining witness together, it appears that she was making to the Court a separate identification of the defendant and that the photographs were just another identification means that she was able to accomplish through her memory.'

The testimony of the complainant at the preliminary examination was that on June 25, 1974, she was home alone; and at about 8:35 p.m. she heard a noise in the kitchen; that she went into the kitchen and noticed the sliding glass door, which had been closed earlier, was open; that she saw a person crouching outside the door on the deck-porch about eight feet away from her, she stood there for a moment and then spoke, whereupon the person stood up, turned and stared at her a few minutes, then went down the stairs leading from the deck-porch. She testified the person was wearing a green army-type jacket, which was open and that he had a shirt similar to a T-shirt underneath, with blue jeans. She further stated that after he turned toward her, she stared directly into his face for 5 to 10 seconds before he fled; that she then closed and locked the door with a board, and called the police, giving them a detailed description of the suspect including his physical characteristics, clothing and approximate age. She also testified there were mud prints, it having rained earlier, on the redwood porch, and a sandy footprint on the carpet just inside the kitchen door pointing directly towards the chair; that she realized her purse, which had been hanging on this kitchen chair, was missing and she again called the police to inform them.

She further testified that several days later, at the request of the police she went down to the station to examine some photos; that a woman at the desk gave her three or four photos to examine; that she went through them carefully, and then again a second time. She set one aside, gave the others to the woman-clerk and then said: 'I looked at this one for a couple of minutes to make sure', and then handed this one back, saying: 'This is the person'. The clerk asked her if she was sure, and she replied: 'Yes, I'm positive.'

At the trial, complainant's testimony was substantially the same but with some significant additions, including that she had a sideview of the defendant while he was crouched; that the time was 8:05 p.m., about five minutes after her roommate had left; that it was daylight savings time and that the sun had just set; that she observed him from a distance of six to seven feet for approximately five to seven seconds and that he was wearing regular shoes; that when defendant came to the hospital where she worked looking for a job, he looked familiar, and she thought, 'No, this can't be', so as he was filling out the job application form she walked behind him, glanced over his shoulder and saw his name and recognized it as the one on the arrest warrant, thus confirming her recognition.

The argument advanced by defendant as to the first issue is that a suspect of a criminal investigation who becomes the subject of police identification procedures is entitled to counsel. What defendant is asking this Court is an extension of the two proscriptions set forth in People v. Anderson, 389 Mich. 155, 205 N.W.2d 461 (1973), to facts where defendant is Not in custody. We decline to do so. In the instant case there is merely an indication that defendant at the time of the photographic display, was one of several 'possible suspects'. ²

In People v. Lee, 391 Mich. 618, 218 N.W.2d 655 (1974), defendant made the identical argument to the Supreme Court as is made here. The Supreme Court's rejection of this contention could not have been more unequivocal:

'Lee argues that the counselless photographic showup violated his Sixth Amendment right to counsel and so tainted the complaining witness' later identification of him at his preliminary examination and trial as to require reversal of his conviction. He contends that his right to counsel had attached by the time the police showed a 'mug shot' of him to the complaining witness. He argues that since the police investigation had 'focused' suspicion on him on the basis of the clothes similarity, the uncounselled photographic display was improper because its purpose was to build a case against him by eliciting identification evidence, and not merely to extinguish a case against an innocent bystander.'

'We decline to extend the reasoning of Franklin Anderson to the pre-custody, pre-questioning, mere suspicion phase that was evidenced here. 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 photograph arguably depicts a suspect and therefore each person whose photograph appears in the photographic display, or perhaps even the 'mug book' would require the representation of counsel. That would be impossible and absured.' People v. Lee, supra, at 624--625, 218 N.W.2d at 658.

In view of the holding in Lee, supra, we find that defendant was not entitled to counsel at the photographic display. See also People v. Metcalf, 65 Mich.App. 37, 236 N.W.2d 573 (1975), which requires both custody and focus to invoke the Anderson rules; People v. Jackson, 63 Mich.App. 20, 233 N.W.2d 711 (1975), which states even though a defendant is a possible suspect and had previously been in custody on an unrelated charge, he is not entitled to counsel. However, as the Supreme Court pointed...