People v. Hoerl

• Decision Date: 21 February 1979
• Docket Number: Docket No. 77-4929
• Citation: 88 Mich.App. 693,278 N.W.2d 721
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John E. HOERL, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 721

278 N.W.2d 721

88 Mich.App. 693

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

Docket No. 77-4929.

Court of Appeals of Michigan.

Feb. 21, 1979.

Released for Publication May 29, 1979.

Gromek & Bendure by Carl L. Gromek, Detroit, for defendant-appellant.

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

Before DANHOF, P. J., and MAHER and RILEY, JJ.

PER CURIAM.

On April 19, 1977, defendant John Hoerl was convicted by a jury of two counts of armed robbery, M.C.L. § 750.529; M.S.A. § 28.797. He was sentenced to concurrent prison terms of 5 to 15 years, appeals as of right, and raises three issues.

The evidence adduced at trial showed that on the afternoon of August 16, 1976, defendant entered the Taylor home of Beverly Hill, assaulted her with a gun, and seized a sum of money earmarked for her honeymoon. Leonard Kobylawski arrived at the house shortly thereafter. The intruder pointed a gun at him and confiscated $14.

Two days later, Mrs. Hill and her husband left for a vacation in Virginia. Upon their return a week or two after the robbery date, she received an anonymous phone call. The caller, a female, gave the defendant's name as the robber. That same day a photographic showup was conducted at which there was apparently no attorney present. Defendant was tentatively identified by Beverly Hill and positively identified by Mr. Kobylawski. A corporeal lineup, at which counsel was present, was held approximately three months subsequent to the robbery. Both complainants identified the defendant at this time, and he was further identified by both at trial.

Defendant's first allegation of error concerns his assertion that the lower court erroneously admitted testimony, elicited by the prosecutor, that he had been previously identified by the complainants at a pretrial photographic display without benefit of counsel. No objection was tendered by defendant's attorney before or at trial; nevertheless, the failure to object to a pretrial identification procedure will not obviate our consideration of an alleged violation of a constitutional right. People v. Lester, 50 Mich.App. 725, 727, 213 N.W.2d 793 (1973), Lv. den., 392 Mich. 791 (1974), People v. Cotton, 38 Mich.App. 763, 767, 197 N.W.2d 90 (1972), People v. Schumacher, 29 Mich.App. 594, 596, 185 N.W.2d 633 (1971).

In People v. Lee, 391 Mich. 618, 625, 218 N.W.2d 655, 658 (1974), a unanimous Michigan Supreme Court held that the right to have counsel present at a photo showup attaches once a defendant is placed In custody, and not, as defendant herein contends, when the investigation "focuses" upon an individual:

"The Franklin Anderson rule ¹ attaches with custody. Compare People v Cesarz, 44 Ill.2d 180, 255 N.E.2d 1, 4 (1969); United States v. Zeiler, 427 F.2d 1305, 1307 (C.A. 3, 1970); State v. Keel, 5 N.C.App. 330, 335-336, 168 S.E.2d 465, 468-469 (1969). Defense counsel's argument that the right to counsel attaches once 'an investigation has focused' on a particular suspect is an inaccurate one, insofar as it is supposed to refer to 'pre-custody' investigations. The cases to which the defendant refers are In -custody not Pre -custody cases.

"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 absurd." (Emphasis in original.)

Subsequent decisions of this Court have consistently followed the Lee decision. See, E. g., People v. McNeill, 81 Mich.App. 368, 375, 265 N.W.2d 334 (1978), People v. Coles, 79 Mich.App. 255, 262, 261 N.W.2d 280 (1977), People v. Flippo, 70 Mich.App. 652, 656-657, 247 N.W.2d 321 (1976), People v. Metcalf, 65 Mich.App. 37, 42-43, 236 N.W.2d 573 (1975). However, in People v. Kachar, 400 Mich. 78, 88-89, 252 N.W.2d 807, 811 (1977), the Supreme Court majority opinion stated that:

"In People v. Anderson, 389 Mich. 155, 180-181, 205 N.W.2d 461 (1973), we approved the rule then being applied by the Court of Appeals which required that counsel be present at a photographic identification of an accused who is in custody.

"We also approved the application of that rule to a situation where defendant, although not in custody, is the focus of investigation. Thus, in People v. Cotton, 38 Mich.App. 763, 769-770, 197 N.W.2d 90, 94 (1972), the Court of Appeals held that counsel must be present at a photographic identification when '(i)t's purpose (is) to build a case against the defendant by eliciting identification evidence, not to extinguish a case against an innocent bystander'."

However, as Kachar was signed by only two justices, it is not binding precedent. ² Furthermore, in that case the photo showup, unlike the present situation, was conducted after the defendant was taken into custody, bound over for trial, and then released. In Cotton, supra, which decision was specifically limited to its facts, ³ defendant was also taken into custody and released prior to the photographic identification procedure. Although the defendants in Kachar and Cotton were not in custody at the time of the counselless showups, the showups were not prior to custody. The holding of People v. Lee that pre-custody showups do not require the presence of counsel, therefore, is not inconsistent with either Cotton or Kachar. Additionally, the degree of investigative scrutiny present in both Kachar and Cotton was significantly more acute than in the case at bar, where defendant was never before in custody, nor was he connected in any previous way with the crime until police reception of the complainant's anonymous tip.

Accordingly, under People v. Lee, supra, we hold that as defendant was not entitled to counsel at the pre-custody photographic showup, the court below properly admitted the identification testimony. This renders moot defendant's brief assertion that the subsequent identifications were illegally tainted.

Our inquiry is not terminated, however, for we must briefly consider the corollary issue, not posited in defendant's brief, of whether defendant at the time of the identification procedure was readily "available for a corporeal lineup". If so, then identification by photograph is not permissible, even in pre-custody situations. People v. McNeill, supra, 81 Mich.App. at 376, 265 N.W.2d 334. See also People v. Jackson, 391 Mich. 323, 338, 217 N.W.2d 22 (1974).

People v. McNeill, supra, 81 Mich.App. at 377, 265 N.W.2d 334, determined that defendant was not readily available for a corporeal lineup because the police lacked sufficient information to arrest him. See also, People v. Lee, supra, 391 Mich. at 623, 218 N.W.2d 655, People v. Coles, supra, 79 Mich.App. at 262, 261 N.W.2d 280. Application of this standard presents no difficulty in the case at bar. The police had only the tip of an anonymous caller from which to infer defendant's involvement in the crime. Evidence derived from an informant will not, by itself, constitute probable cause for arrest unless: (1) the police have reason to believe that the information is reliable, and (2) the police are informed of the underlying circumstances upon which the informant based his conclusion. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). People v. Daniels, 60 Mich.App. 458, 464, 231 N.W.2d 386 (1975). The police in this case had neither of these elements; arrest, therefore, was not warranted. Nor can we fathom other circumstances by which defendant could have been compelled to participate in a corporeal lineup. ⁴ Thus, it was proper to identify defendant at this stage of the investigation by photograph.

Defendant's penultimate assertion involves the introduction by the prosecution of allegedly hearsay evidence to bolster the complainants' in-court credibility. Officer Ickes testified on direct examination as follows:

"Q. All right. As best as you can recall, what did they (the complainants) tell you about the armed robbery?

"A. The complainant stated that there was a knock at her front door, she went to the front door and asked who it was. He stated that he had just talked to the complainant's husband and he was told to come on over, he would be right back in a few minutes, and to wait for him at the location.

"She let him in and she was then told that he had two guys outside with shotguns, and he pulled a revolver out and struck her in the head and took her through the house and collected took the moneys (Sic ) that was in the location."

Detective Belanger, the officer in charge, then testified regarding the complainants' lineup identification:

"Q. All right. Now, in viewing the lineup how long did it take her (Mrs. Hill) to identify the defendant in this case, John Hoerl?

"A. It took her about two seconds; she was positive.

"Q. Okay. And when Mr. Kobylawski viewed the line, how long did it take him to identify the defendant in this case?

"A. It was the same thing; he was positive, just looked in, looked down the row and picked him."

As these statements were offered to prove the truth of the matter asserted, they were clearly hearsay. ⁵ However, we decline to find reversible error for two reasons. First, the erroneous admission of hearsay testimony is harmless error where the same facts are shown by other competent testimony. People v. Vargas, 50 Mich.App. 738, 741-742, 213 N.W.2d 848 (1973), Lv. den., 392 Mich. 815 (1974), People v. Harrison, 49 Mich.App. 546, 212 N.W.2d 278 (1973),...