People v. Herrera

• Decision Date: 30 August 1972
• Docket Number: Docket No. 12878,No. 1,1
• Citation: 42 Mich.App. 617,202 N.W.2d 515
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John HERRERA, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 515

202 N.W.2d 515

42 Mich.App. 617

PEOPLE of the State of Michigan, Plaintiff-Appellee, v.John HERRERA, Defendant-Appellant.

Docket No. 12878.

Court of Appeals of Michigan, Division No. 1.

Aug. 30, 1972.

Leave to Appeal Denied Nov. 24, 1972.

Released for Publication Dec. 11, 1972.

Carl Ziemba, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol.Gen., William L. Cahalan, Pros.Atty., Dominick R. Carnovale, Chief, Appellate Div., Edward R. Wilson, Asst. Prosecuting Atty., for plaintiff-appellee.

Before DANHOF, P.J., and LEVIN and BORRADAILE^*, JJ.

BORRADAILE, Judge.

After a jury trial in Detroit Recorder's Court, defendant was found guilty of murder in the perpetration of a robbery contrary to M.C.L.A. § 750.316,M.S.A. § 28.548.He appeals as of right raising questions as to the lineup, the propriety of excluding him, acting In propria persona, from bench conferences, failure to instruct on lessor included offenses and expressions of personal belief by the prosecuting attorney in his closing argument.

I

Defendant argues that his arrest was illegal because made without probable cause.As a result of the arrest, he was put in a lineup which he claims was unfair because he was the only Mexican-American.

An arrest was made on the basis of information that the suspect was a Mexican or Indian male, 20 to 30 years of age, five feet 8 to five feet 9, 140 to 150 pounds, black hair and wearing a green coat.An anonymous phone call had also indicated that the suspect's first name possibly was Johnny, who may have been shot through the right arm, and could be found at either 2239 Cadillac, where the crime occurred, or 1631 Pennsylvania in the City of Detroit.

The officers arrested the number 2 suspect at the Pennsylvania address and while transporting him to the Homicide Bureau, about a mile from the apartment, the officers saw defendant walking along the street and arrested him.In the evidentiary hearing the officer making the arrest claimed he saw a dried blood spot on the green coat defendant was wearing.The murder occurred on January 23, 1971, and defendant was arrested January 27, 1971.

Shortly after his arrest defendant was placed in a lineup with counsel present with four other persons.Defendant at the evidentiary hearing said he was the shortest.He also complained that he wanted to move nearer somebody 'that looked dark complected, you know, or Latin type you know and the man wouldn't let me * * *.'Later, he said there was no other Latin type person in the lineup.

The court held there was probable cause for the arrest and that the lineup was not so suggestive in its very nature as to deny defendant due process of law.

Further, on appeal, defendant argues Gatlin v. United States, 117 U.S.App.D.C. 123, 326 F.2d 666[42 Mich.App. 621](1963), to the effect that if the officer did not have probable cause to make the arrest, then all subsequent proceedings are tainted.

This Court has held in People v. Nawrocki, 6 Mich.App. 46, 53, 150 N.W.2d 516, 520(1967), cert. den.389 U.S. 942, 88 S.Ct. 304, 19 L.Ed.2d 296(1967):

'That a defendant's arrest was without a warrant or was illegal, cannot be considered at the trial, where it was followed by a complaint and warrant on which the defendant was held for trial, or, where the defendant was regularly bound over to the circuit court for trial.Even though an arrest is irregular, the defendant is not thereby given the right to say that he shall not be tried at all.'

See alsoPeople v. Cole, 28 Mich.App. 517, 184 N.W.2d 517(1970);People v. Drummonds, 30 Mich.App. 275, 186 N.W.2d 7(1971);People v. Gilleylen, 31 Mich.App. 416, 423, 188 N.W.2d 131(1971), leave to appeal denied, 385 Mich. 768(1971).

Defendant argues that the identification at the lineup was a 'fruit of a poisonous tree,' stressing that the identification procedures violated the standards of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149(1967).

Wade said that an accused was entitled to aid of counsel at the lineup and where the accused did not have counsel present, the government had to establish by clear and convincing evidence that the in-court identification was based upon observation of the suspect other than the lineup identification.

In the instant case, defendant testified at the evidentiary hearing and admitted that counsel was present.Thus, Wade is not applicable.

This Court in People v. Lloyd, 5 Mich.App. 717, 724--725, 147 N.W.2d 740, 744(1967), said:

'Lineups are conducted in police stations, and the persons who participate in the lineup are taken from those who are being held in custody.It would be unusual indeed if the police had five persons with similar physical characteristics locked up in the same jail.Moreover, the purpose of a lineup is identification.If the defendant is the tallest man in the lineup, and if he believes that this impairs the validity of the identification, he should see that the jury is apprised of that fact.This is a question of the weight to be given the lineup identification, not its admissibility.'

The judge, in denying the motion for suppression of the lineup identification, correctly ruled that the question of identification was properly a jury question.

A faulty identification procedure will not result in forbidding of in-court identification when there is an independent basis for such identification.At the evidentiary hearing the witness who identified defendant as the one who stuck a gun up beside his head, asked for money, then ordered him to the apartment where the fatal shots were fired, said that 'I didn't really notice no one in the lineup but him, that's all.* * * Yeah, I mean I looked at them coming Out on the stage but when I walked out there he was the first one I seen, he's the one.'

The witness also testified that he did not find defendant in photographs shown to him before the lineup.

Defendant, acting In propria persona at his own request, cross-examined the identifying witness closely concerning his ability to identify defendant.The witness testified that he first saw defendant standing outside the glass door of the apartment house when the witness came down the stairs, that he next saw defendant pacing in the lobby when the witness came out of the apartment where the shooting later occurred, that the light was on and the witness could see his face and that for eight or nine seconds he saw assailant's face in the room where the incident occurred.

On redirect examination the witness also said he could remember how the defendant looked the night of the shooting independent of any photographs or lineups or anything else.

The trial judge carefully covered the issue of identification in his instructions.

'Now the possibility of human error or mistake and the probable likeness or similarity of objects and persons are matters that you must always bear in mind in considering testimony as to identity.You should be mindful of any testimony concerning the length of time the identifying witness had for making his observations, the location of the identifying witness with respect to the person who is being identified, the lighting conditions at the time of the claimed identification, whether or not there was excitement and other circumstances which may have aided or impeded a proper observation, and what, if any, special interest the identifying witness had in making or remembering his observation.In short, you must carefully consider all the relevant facts and circumstances surrounding the identification, and you must be satisfied beyond a reasonable doubt as to the accuracy of that identification.'

We find no error as to identification.

II

Defendant was properly permitted to act as his own counsel but the court required his appointed counsel to be available for assistance in legal matters such as objections and arguments.At the beginning of the trial, the trial judge ruled that defendant would not be permitted to approach the bench to participate in off-the-record discussions.

Defendant claims that this procedure denied him due process of law and denied him the right to effective counsel because he could not defend himself at these conferences.It might be noted that the court permitted discussions between appointed counsel and defendant after such a conference.

During a prior court appearance the defendant had slashed a police officer in the face and the transcript is replete with contemptuous remarks made by defendant to the court during the trial.

Though a reading of Lewis v. United States, 146 U.S. 370, 13 S.Ct. 136, 36 L.Ed. 1011(1892), andPeople v. Palmer, 28 Mich.App. 624, 185 N.W.2d 94(1970), may indicate that a person proceeding In propria persona is denied effective assistance of counsel when he is prevented from participating in rulings made by the court which could adversely affect the proceedings against him, Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353(1970), reh. den.398 U.S. 915, 90 S.Ct. 1684, 26 L.Ed.2d 80(1970), indicates that a Court may protect against disruptive defendants without denying due process of law.

It should not be inferred that many at-bench, off-the-record conferences discussing issues of law are proper, but a judge may adopt reasonable rules of procedure to assure orderly trial of a matter where defendant's conduct indicates he cannot respect proper rules.Such reasonable rules were followed in the instant case.

III

Defendant specifically indicated at trial that he objected to the jury being charged as to any included offense.The trial judge, however, instructed on the lesser included offense of second degree murder, after the prosecutor requested it.

Now defendant says that if the court instructs on any included offenses, it must instruct on all included offenses, relying on M.C.L.A. § 768.32;M.S.A. § 28.1055.

In People v. Miller, 28 Mich.App. 161, 184 N.W.2d 286(1970), ...