People v. Hairston, Docket No. 10266

• Decision Date: 22 November 1971
• Docket Number: Docket No. 10266,No. 2,2
• Citation: 194 N.W.2d 504,37 Mich.App. 65
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jefferson HAIRSTON, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 504

194 N.W.2d 504

37 Mich.App. 65

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jefferson HAIRSTON, Defendant-Appellant.

Docket No. 10266.

Court of Appeals of Michigan, Division No. 2.

Nov. 22, 1971.

Released for Publication Feb. 23, 1972.

William A. Shaheen, Jr., Flint, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert F. Leonard Pros. Atty., Donald A. Kuebler, Chief Asst. Pros. Atty., for plaintiff-appellee.

Before McGREGOR, P.J., and HOLBROOK and VanVALKENBURG, ^* JJ.

HOLBROOK, Judge.

The defendant in a circuit court jury trial was convicted on July 1, 1970, of the offense of robbery armed contrary to the provisions of M.C.L.A. § 750.529 (Stat.Ann.1971 Cum.Supp. § 28.797). On July 28, 1970, he was sentenced to serve a term of not less than 20 nor more than 30 years in prison. Defendant has taken this appeal as of right.

The complaint in this case alleged that 'Thomas Gillespie and John Doe did then and there assault one Dale Liikala with a dangerous weapon, to-wit: A pistol, and did take, steal and carry away United States currency in excess of $1.00 in the presence of and against the will of the said Dale Liikala, said money belonging to Jerry Jurasek, * * *.' The warrant was issued by the district court for the arrest of Thomas Gillespie and John Doe. Thereafter a confidential informer advised one of the police detectives that one Jefferson 'June Bug' Hairston was the John Doe mentioned in the complaint and warrant. On December 19, 1969, defendant was arrested and arraigned, and demanded a preliminary examination. At the preliminary examination the defendant was bound over to the circuit court for trial. On January 9, 1970, an information was filed in the circuit court charging the defendant with the offense of robbery armed. On arraignment he stood mute and the court entered a plea of not guilty on his behalf. As stated, after a trial by jury he was convicted.

Defendant raises 3 issues which we consider in proper order.

I.

Did the trial court err in allowing an in-court identification of the defendant where he had been subjected to a pretrial lineup without the benefit of defense counsel?

Defendant claims that the in-court identifications by witnesses Dale Liikala and Arlene Williams were tainted because they were preceded by a claimed illegal lineup at a time when defendant did not have counsel present. United States v. Wade (1967), 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149. In Gilbert v. California (1967), 388 U.S. 263, 272, 87 S.Ct. 1951, 1956, 18 L.Ed.2d 1178, 1186, the Court stated in part as follows:

'The admission of the in-court identifications without first determining that they were not tainted by the illegal lineup but were of independent origin was constitutional error. United States v. Wade (supra) * * *. However, as in Wade, the record does not permit an informed judgment whether the in-court identifications at the two stages of the trial had an independent source. Gilbert is therefore entitled only to a vacation of his conviction pending the holding of such proceedings as the California Supreme Court may deem appropriate to afford the State the opportunity to establish that the in-court identifications had an independent source, or that their introduction in evidence was in any event harmless error.'

Although there is evidence that the defendant consented to appear in the pretrial lineup without counsel being present, we deem it unnecessary to determine if defendant effectively waived this constitutional right.

On direct examination of the witnesses no mention was made of the pretrial lineup identification of the defendant. This testimony was brought out by defendant's counsel upon cross-examination and, of course, no objections were made. After this testimony was admitted, defense counsel made the following motion out of the presence of the jury:

'Your Honor, on the basis of the testimony of Officer Kostka, it is apparent that the arrest of the defendant was made purely upon the basis of the information received from a confidential informant. And Officer Kostka indicated that when a police car went out and picked up Mr. Hairston that he was under arrest. At that point he was brought back to the police station under arrest, put in a lineup and was identified by certain persons who have confirmed their identification today.

'Now we would move, your Honor, that the charge be dismissed against Mr. Hairston on the ground that at the very inception of this matter he was improperly arrested. That you cannot arrest a person based upon information received from a confidential informant and that the entire proceedings thereafter were therefore improper, and that the identifications which have come up in court today, being predicated upon those initial identifications are also tainted thereby so on that ground, your Honor, we would move that the charge be dismissed against Mr. Hairston.'

After the prosecuting attorney stated his reasons for opposing this motion, the defendant's counsel said:

'So, it is our position, your Honor, that Officer Kostka, although he did have knowledge, reasonable cause to believe that a felony had been committed, I don't believe that information from a confidential informant is sufficient upon which to say that there is reasonable cause to believe that Mr. Hairston committed the act. So, I believe that on the basis of Officer Kostka's statements that there was an improper arrest, that the lineup was improper, that the identifications were improper and, therefore, the whole foundation for these identications (sic) in your court today is tainted basically. That's our position, your Honor.'

After the trial court ruled: (1) that the arrest was Not illegal; (2) that the motion was Not timely made; and (3) that witness Williams could make an independent in-court identification of the defendant, the prosecuting attorney persuaded the trial court to conduct a 'separate hearing' to determine if witness Liikala could also make an 'in-court identification' of the defendant as one of the robbers. This motion did not raise a Wade claim but rather asserted that the arrest was illegal and therefore the entire proceedings were improper.

This Court in the case of People v. Childers (1969), 20 Mich.App. 639, 646, 174 N.W.2d 565, 569, ruled that the procedure to be followed in raising Wade claims and preserving them for review on appeal is:

'1) Where the factual circumstances constituting the illegal confrontation are known to the defendant in advance of trial, the defendant is responsible for communicating them to his lawyer and his lawyer, in turn, is responsible for making a motion to suppress in advance of trial.

'2) Where the factual circumstances constituting the illegal confrontation are unknown to the defendant in advance of trial, or where other 'special circumstances' make a pretrial motion impossible, the motion to suppress may be made during trial.

'3) In either event, once the claim of illegal confrontation is raised, an evidentiary hearing must be held to determine the merits of the claim, and this hearing must be held outside the presence of the jury.'

Our Court in People v. Hutton (1970), 21 Mich.App. 312, 327, 328, 175 N.W.2d 860, 867, set forth three rules which the Court would follow in considering appellate challenges to such in-court identifications:

'If it appears from the record by clear and convincing evidence that the in-court identification was not tainted by the prior identification or if the evidence shows beyond a reasonable doubt that admission of that identification was harmless, and there is otherwise no error, the conviction will be affirmed. See People v. Love (1969), 18 Mich.App. 228, 171 N.W.2d 33; People v. Wilson (1969), 20 Mich.App. 410, 174 N.W.2d 79; People v. Childers, Supra; People v. Bratton (1969), 20 Mich.App. 523, 174 N.W.2d 297; People v. Nugent (1969), 21 Mich.App. 58, 174 N.W.2d 623; People v. Martin, Supra ((1969), 273 Cal.App.2d 724, 78 Cal.Rptr. 552). If it can be determined from the record that the in-court identification was tainted and that it does not appear harmless beyond a reasonable doubt, the conviction will be reversed. See People v. Espinoza Menchaca (1968), 264 Cal.App.2d 642, 70 Cal.Rptr. 843; People v. Colabella (1969), 31 A.D.2d 827, 298 N.Y.S.2d 40; People v. Hill (1969), 32 A.D.2d 966, 303 N.Y.S.2d 14; Mason v. United States (1969), 134 U.S.App.D.C. 280, 414 F.2d 1176. If the record does not permit an informed judgment that the in-court identification had an independent source, or was harmless beyond a reasonable doubt, the case will be remanded for an evidentiary hearing. See United States v. Wade, Supra; People v. Ballott (1967), 20 N.Y.2d 600, 286 N.Y.S.2d 1, 233 N.E.2d 103. In each of the above postures the reviewing court in reaching its conclusion will independently scrutinize the record, giving customary weight to the findings of the trial court. See People v. Nugent, Supra.'

The trial court properly ruled that when considering the testimony of witness Williams, that her in-court identification of defendant had a sufficient independent source. ¹

At the separate hearing held outside the presence of the jury to determine if witness Liikala could also make an in-court identification from a sufficient independent source, Mr. Liikala testified on direct examination as follows:

'Q. Mr. Liikala, on the date of the robbery did you see the face of one of those two robbers who went behind the pharmacy counter?

'A. Yes, I did.

'Q. And did you get a good look at that face?

'A. Yes, I did.

'Q. And are you perfectly satisfied that you had a good enough look at that face to be able to identify it?

'A. Yes, I did. Yes, I am.

'Q. You have seen that face in a lineup, haven't you?

'A. Yes, I have.

'Q. If you just disregard that lineup entirely, put it completely out of your mind, would you still and are you still able to identify the...