People v. Horton, Docket No. 78-5093

• Decision Date: 04 June 1980
• Docket Number: Docket No. 78-5093
• Citation: 296 N.W.2d 184,98 Mich.App. 62
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Raymond Lester HORTON, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 184

296 N.W.2d 184

98 Mich.App. 62

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Raymond Lester HORTON, Defendant-Appellant.

Docket No. 78-5093.

Court of Appeals of Michigan.

June 4, 1980.

Released for Publication Sept. 24, 1980.

Edwin R. Leonard, Sterling Heights, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., E. Reilly Wilson, App. Chief Asst. Pros. Atty., Gary R. Dettloff, Asst. Pros. Atty., for plaintiff-appellee.

Before DANHOF, C. J. and CYNAR and MacKENZIE, JJ.

PER CURIAM.

Defendant was convicted by a jury of unarmed robbery, contrary to M.C.L. § 750.530; M.S.A. § 28.798. He was sentenced to a term of 10 to 15 years and appeals as of right.

The complainant, Thomas Kittrell, testified that he left work at the Blue Cross-Blue Shield building in downtown Detroit early in the evening of March 23, 1978. He had parked his van in a nearby parking structure. After Kittrell stopped for a red light on an adjacent street, defendant, who had been concealed in the rear of the van, moved forward and accosted Kittrell, forcing him to drive to another location where defendant robbed him of various articles of clothing and personal effects. Defendant subsequently made good his escape on foot. Kittrell reported the incident to the police and provided a description of the robber.

A number of robberies with a similar modus operandi, perpetrated by an individual with a similar description, caused the police to establish a surveillance of the area around the Blue Cross-Blue Shield building. On March 29, 1978, defendant, who bore a strong resemblance to the description, was seen by police officers approaching a man in the vicinity where the surveillance was being conducted, apparently to accost the other individual. Together they drove to a location near where the previous robberies had been perpetrated. Suspecting that a felony was in progress and fearing for the safety of the driver of the vehicle, the police apprehended defendant. Later that same day, defendant was identified in a lineup by Thomas Kittrell as the man who robbed him. David Hall, a prior victim, also identified defendant in the lineup.

Defendant's first assignment of error involves the trial court's denial of a motion to dismiss the proceedings because of his arrest. Defendant alleges that the arrest was invalid because no probable cause existed to justify a warrantless arrest. Defendant also alleges that all subsequent proceedings are thereby void.

In People v. Tebedo, 81 Mich.App. 535, 265 N.W.2d 406 (1978), we held that an arrest warrant is not required for a valid arrest when an officer has reasonable cause to believe that there has been a felony committed and reasonable cause to believe that the person arrested committed it. The officer's reasonable belief must be based on what he observes or what he learns from a reliable source. Information supplied from a reliable citizen source is enough to found a reasonable belief, People v. Herrera, 19 Mich.App. 216, 172 N.W.2d 529 (1969). Such a belief may be founded upon a description related to police officers by a complainant, People v. Jackson, 11 Mich.App. 630, 162 N.W.2d 114 (1968).

In the case at bar, the police officers arrested defendant while he was engaged in activity that was strikingly similar to the modus operandi of previous robberies. The arresting officers knew that previous felonies had been committed and based upon the information obtained from various complainants had reasonable cause to believe that defendant had probably perpetrated them. Defendant's warrantless arrest was valid and the trial court did not err in denying the defendant's motion to dismiss.

Defendant's second allegation of error involves the trial court's denial of a motion to suppress a lineup identification as impermissibly suggestive and as a violation of his constitutional rights. He alleges that the lineup was unduly suggestive because of age and height differences between defendant and the other participants. Defendant also alleges that he was forced to remain in one position throughout the lineup procedure and that the police officials conducting the lineup pointed defendant out to the viewing complainants.

In People v. Wiejecha, 14 Mich.App. 486, 165 N.W.2d 642 (1968), we held that a defendant is entitled to an evidentiary hearing where the admissibility of evidence is challenged on constitutional grounds. In People v. Piscunere, 26 Mich.App. 52, 181 N.W.2d 782 (1970), we extended this rule to a defendant's claim of a constitutionally improper lineup. See also People v. Reynolds, 93 Mich.App. 516, 286 N.W.2d 898 (1979).

The standard of review in such an evidentiary hearing requires that the identification procedure followed must not be so unnecessarily suggestive and conducive to irreparable mistaken identification that defendant is denied due process of law, Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L. Ed.2d 1199 (1967). The trial court must look at the totality of circumstances surrounding the lineup identification procedure. Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969). An examination of the record in the instant case reveals that the lineup procedure and composition thereof were free of any taint or suggestion. The physical characteristics of the participants involved in the lineup were not so unduly suggestive as to prejudice defendant.

Defendant alleges that a mole-type scar on his right cheek precluded the selection of any of the other lineup participants and that lack of precautions to cover such scar was error.

In People v. Mack, 21 Mich.App. 96, 174 N.W.2d 857 (1970), we found in an analogous situation that presence of a scar was not enough to vitiate the lineup identification procedure. See People v. Lloyd, 5 Mich.App. 717, 174 N.W.2d 740 (1967). Defendant's scar alone was not so significant as to preclude identification based upon other physical characteristics.

In People v. Rivard, 59 Mich.App. 530, 230 N.W.2d 6 (1975), we held that the burden rests with the defendant to factually support a claim that the lineup was impermissibly suggestive, when counsel is present. The record of the case at bar indicates that counsel was present throughout the lineup procedure and identification process. Testimony relating to defendant's allegations of suggestions promoted by police and inability to move to other positions in the lineup was specifically refuted by testimony of counsel, the police officials conducting the lineup, and the victims viewing the lineup. Counsel present at the lineup indicated that the procedure was fair and complied with the mandate of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). We find no merit in defendant's allegation, and hold that the trial court's findings were proper.

Defendant's third allegation of error involves the exercise of the trial court's discretion in allowing into evidence the testimony of a similar-act witness, David Hall.

The people offered the evidence of a prior similar act for the purpose of identifying defendant as the perpetrator of the charged offense via the "signature" of a common scheme or plan. In the prior act, defendant accosted David Hall as he was getting into his car after work (at 5:45 p. m.) in a parking lot close to the Blue Cross-Blue Shield parking structure. Defendant climbed into the back seat and ordered Hall to drive (for approximately 15 minutes) to a distant area where he was ordered to take off his jacket and was robbed.

On March 23, 1978, Kittrell left work at Blue Cross at about 7:30 p. m., drove his van out of the Blue Cross-Blue Shield parking structure when defendant moved from the back of the van, placed a purported weapon to his head, and ordered him to drive to the same distant area where Kittrell was ordered to disrobe. He was then robbed.

The Michigan Supreme Court has recently clarified the circumstances under which similar-act evidence is admissible. People v. Major, 407 Mich. 394, 285 N.W.2d 660 (1979). First, it must be probative of one or more of the statutorily specified purposes, and one or more of those purposes must be material, that is, a proposition "in issue" in the case. 407 Mich. at 400, 285 N.W.2d 660. Then, there should be direct proof of three propositions from which a fourth is inferable: 1) that the manner in which the criminal act in question or some significant aspect of it was performed bore certain distinguishing, peculiar or special characteristics; 2) that certain specific similar acts, performed contemporaneously with or prior to or subsequently to the act in question, bore...