People v. Hutton, Docket No. 5253

• Decision Date: 03 February 1970
• Docket Number: Docket No. 5253,No. 2,2
• Citation: 21 Mich.App. 312,175 N.W.2d 860
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William Thomas HUTTON, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 860

175 N.W.2d 860

21 Mich.App. 312

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William Thomas HUTTON, Defendant-Appellant.

Docket No. 5253.

Court of Appeals of Michigan, Division No. 2.

Feb. 3, 1970.

Rehearing Denied March 17, 1970.

Released for Publication March 26, 1970.

Leave to Appeal Denied June 23, 1970.

Max D. McCullough, Nicoletti & McCullough, Mt. Clemens, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., George N. Parris, Pros. Atty. Macomb County, Thaddeus F. Hamera, Mt. Clemens, Chief Appellate Lawyer by Stephen F. Osinski, Asst. Pros. Atty., for appellee.

Before GILLIS, P.J., and McGREGOR and V. J. BRENNAN, JJ.

GILLIS, Presiding Judge.

Defendant was convicted by a jury of breaking and entering in violation of M.C.L.A. § 750.110 (Stat.Ann.1969 Cum.Supp. § 28.305). His motion for new trial was denied and he appeals. The principal question presented concerns application of the principles enunciated in the identification trilogy, United States v. Wade (1967), 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. California (1967), 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, and Stovall v. Denno (1967), 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199. We have concluded that defendant's conviction must be reversed for error in the admission of evidence identifying defendant as a participant in the crime.

The Facts

On the morning of August 15, 1967, at approximately 4:15 a.m., Dale Kuecken returned home from work. From his apartment window, he observed a car parked in front of a laundromat across the street. Several individuals were scurrying about the building, one of whom was wearing a white T-shirt. Kuecken heard a voice say, 'We can't get in,' and he saw some-one trying to pry open the door. He called the police. Kuecken then heard glass breaking and an alarm ringing and he saw two persons running toward his side of the street. Kuecken took his shotgun and went outside to stop them. He confronted one individual and ordered him to stop. At the same time, Kuecken observed the second individual running to his left. This second man was wearing a white T-shirt and had sandy, blond hair. Thereafter, Kuecken was struck by a tire iron thrown by the first person who then fled.

The police arrived and Kuecken directed their attention to a car that was driving away from the scene. The police pursued this car, overtook it, and apprehended defendant and two others. When apprehended by the police, defendnat was wearing a white T-shirt. The police took the three men to the police station where, approximately an hour after the breaking and entering, they were viewed by Kuecken through a one-way glass panel. At the station, where Kuecken had been brought by the police for the purpose of identifying the suspects, Kuecken identified Gerald Love as the man who had thrown the tire iron. Also, according to his testimony at trial, Kuecken identified defendant Hutton as the man he had seen running to his left.

Defendant and Love were tried together. At trial, Kuecken was asked by the prosecution to make an in-court identification of Love. Counsel for defendants objected and moved for a special record. The defense offered to show that the confrontation at the police station was held in the absence of counsel. It was claimed that the absence of counsel violated defendants' constitutional rights; that testimony of any identifications made at the confrontation could not be admitted; and that a separate record was required in order to determine whether Kuecken could identify either Love or defendant independently of the allegedly illegal confrontation.

The trial court commenced a special record but refused defense counsel's request to continue this record to the point of determining whether the confrontation was illegal and whether in-court identifications of either Love or defendant had sources independent of the police station confrontation. The trial judge was apparently of the view that the issue of independent source was a matter of credibility for the jury. Thereafter, the jury was recalled and on direct examination Kuecken's testimony implied that he recognized defendant Hutton as the man he had seen running to his left at the scene of the crime. Kuecken also testified that he had identified defendant at the police station. Defense counsel objected to this latter testimony on the ground that it had not been shown whether the confrontation was constitutionally held.

The prosecution then called the police officers who had apprehended the fleeing car and taken defendant into custody. The officers related the details of the police station confrontation. The testimony of the officers tended to show that the suspects had been advised of their right to counsel; that they had asked to call an attorney; but that no attorney was present at the confrontation. At the close of the prosecution's case, defense counsel moved that all testimony of identifications made at the confrontation be stricken. On special record, the trial court inquired of Hutton:

'The Court: * * * Did you ask for an attorney?

'The Witness: Yes, sir.

'The Court: When did you ask for an attorney?

'The Witness: At the time we were picked.

'The Court: Now, were you told that there was going to be a lineup or show up?

'The Witness: No sir, we weren't.'

The court then ruled that the confrontation at the police station was in violation of defendants' rights. The jury was instructed to disregard the identifications made at the police station.

Defense counsel also moved that Kuecken's in-court identification of Hutton be stricken on the ground that the prosecution had failed to show that Kuecken could identify Hutton independently of the illegal confrontation. Counsel noted: 'Here we have the identification of Mr. Hutton, at the closest, I believe 30 feet, running.' The court responded: 'But isn't that a question of credibility for the jury?' The motion to strike was denied.

Application of the Wade, Gilbert and Stovall Trilogy

On appeal, defendant contends that the trial court erred in denying his motion to strike Kuecken's in-court identification, since the prosecution failed to establish by clear and convincing evidence that Kuecken's in-court identification was based on observations of Hutton other than those obtained at the police station confrontation. Defendant relies upon United States v. Wade, Supra, and the exclusionary rules there adopted. See 388 U.S. at p. 240, 87 S.Ct. at p. 1939, 18 L.Ed.2d at p. 1164. The people contend that the principles enunciated in Wade and companion cases are inapplicable to the facts of this case. It is argued that Hutton was not entitled to counsel at the police station confrontation and that, therefore, the exclusionary rules do not apply.

In United States v. Wade, Supra, it was held that the Sixth Amendment guarantees to an accused the right to counsel at pretrial lineups conducted for identification purposes. In the present case it is clear that at the time defendant was identified at the police station he did not have the assistance of counsel. We must therefore consider whether defendant's right to counsel had attached at the time he was identified.

The precise holding of Wade and Gilbert apply only to post-indictment lineups conducted for purposes of identification. The people seek to distinguish the present case on the ground that no indictment had been filed against Hutton. In light of the rationale of Wade, we cannot agree with this contention. In Wade, the Court noted that a compelled confrontation between the accused and the victim or witnesses to a crime to elicit identification evidence is 'riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial.' 388 U.S. at p. 228, 87 S.Ct. at p. 1933, 18 L.Ed.2d at p. 1158. Accordingly, it was held that such confrontations constitute a critical stage of the prosecution at which an accused is entitled to counsel. These same dangers were present when Hutton was viewed by Kuecken through the one-way mirror, and we think it clear that counsel's presence was required, notwithstanding the absence of a formal indictment. See People v. Childers (1969), 20 Mich.App. 639, 174 N.W.2d 565 (Released to parties December 9, 1969); People v. Fowler (1969), 270 A.C.A. 717, 76 Cal.Rptr. 1; People v. Martin (1969), 273 A.C.A. 724, 78 Cal.Rptr. 552; Palmer v. State of Maryland (1969), 5 Md.App. 691, 249 A.2d 482. In this regard, we note that in Wade the Court specifically questioned the practice of using one-way mirrors for identification purposes. See United States v. Wade, Supra, note 13, 388 U.S. at p. 230, 87 S.Ct. at p. 1934, 18 L.Ed.2d at p. 1159). Moreover, many passages of the Wade, Gilbert, and Stovall opinions indicate that the Court did not intend to limit their effect to post-indictment lineups. ¹

The people also contend that the action of the police in this case constituted an in-the-field identification, one wholly different from the confrontations in Wade and Gilbert. The people rely on Commonwealth v. Bumpus (1968), 354 Mass. 494, 238 N.E.2d 343. In Bumpus, a suspect was apprehended by the police within minutes after a robbery and returned to the victim's apartment for identification. The court characterized this on-the-scene identification as a 'reasonable confrontation * * * in the course of (or immediately following) a criminal episode,' 354 Mass. at p. 501, 238 N.E.2d at p. 347, at which counsel's presence was not required. Wade and Gilbert were held inapplicable in such circumstances. See also Smith v. State of Maryland (1969), 6 Md.App. 23, 249 A.2d 732; United States v. Davis (C.A. 2, 1968), 399 F.2d 948; Bates v. United States (1968), 132 U.S.App.D.C. 36, 405 F.2d 1104; Russell v. United States (1969), 133 U.S.App.D.C. 77, 408 F.2d 1280.

It is evident from a reading of Bumpus and its siblings that courts are not inclined to hold that...