People v. Johnson

• Decision Date: 10 February 1975
• Docket Number: No. 2,Docket No. 18104,2
• Citation: 58 Mich.App. 347,227 N.W.2d 337
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Manuel Lee JOHNSON, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 337

227 N.W.2d 337

58 Mich.App. 347

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Manuel Lee JOHNSON, Defendant-Appellant.

Docket No. 18104.

Court of Appeals of Michigan, Division No. 2.

Feb. 10, 1975.

Released for Publication April 4, 1975.

James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Bruce A. Barton, Pros. Atty., Jackson, for plaintiff-appellee.

Before BRONSON, P.J., and HOLBROOK and V. J. BRENNAN, JJ.

HOLBROOK, Judge.

On May 19, 1973, Manuel Lee Johnson, Defendant, was convicted by jury of armed robbery, contrary to M.C.L.A. § 750.529, M.S.A. § 28.797, and was sentenced to prison for 7 to 20 years. He appeals as of right.

On the evening of November 14, 1972, at approximately 7:30, a black male, identified by Irene Zawacki, complainant at trial, as the defendant, entered Zawacki's Party Store in Jackson, Michigan and purchased a package of cigarettes. Mrs. Zawacki was tending the store at the time. The defendant had his left hand in his pocket and it appeared to be bulged. As defendant left he looked over the whole store. The complainant was apprehensive and called her husband on the phone; and he said he would come right down. The defendant returned to the store a few minutes later, entered and walked towards the complainant, at which time he pulled a nylon stocking from underneath his stocking cap to hide his face, which complainant said she had already seen about 10 to 15 minutes before. When defendant entered the store the second time, the complainant pressed the panic button (call for the police). Defendant came up to complainant and said: '(T)his is a hold-up. I want your money.' At the time the complainant said she observed inside his jacket either a zipped pocket or a cut pocket and a gun protruding from it. The handle of the gun had a diamond criss-cross in it. Mrs. Zawacki gave the defendant the bills in the cash register at which time he said: 'I want it all.' She pulled the drawer out as far as she could and said: 'That is all. * * * What about the change?' The defendant said: 'I want the change too.' Mrs. Zawacki, after trying twice, pulled out the quarters and put them on the counter. Defendant grabbed them and ran out of the store. There was approximately $150 taken. Only Mrs. Zawacki and the defendant were in the store at the time of the robbery.

Shortly thereafter the defendant was arrested near the scene of the crime, while driving a blue Chevrolet Impala automobile with personal initials on the side, fitting the description of the automobile used by the robber. He was searched and had on his person $79.15, including nine $1 bills, seven $5 bills, three $10 bills, and a bunch of quarters. Detective Stiles Brown took a statement from the defendant on November 15, 1972. The trial court conducted a Walker ¹ hearing and determined that the statement given by defendant to Officer Brown was voluntary, that the warning given to defendant satisfied Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966), and that defendant waived his rights thereunder. Officer Brown testified that defendant told him that he committed the robbery and that he had an accomplice, but declined to name the accomplice. The account of defendant as to what happened that night accorded with Mrs. Zawacki's testimony at trial. He said the gun he used was thrown from the car into the Grand River. Two witnesses for the prosecution testified that about 7:30 on the night in question they observed an automobile similar to the one defendant was driving parked crossways with its motor running in a lot neighboring the party store. One testified he saw a black man sitting inside the car at the time, and moments later observed the car pulling away with two people inside. The defendant presented the defense of alibi. Although admitting he was in the store about 6 p.m., he testified he did not return and was at his brother-in-law's at the time of the claimed robbery. His brother-in-law and nephew testified, mainly supporting the testimony of the defendant. Defendant denied his alleged confession to Officer Brown and disputed the account of his statement to Detective Lowe, as Detective Lowe had reported it.

Ia

Defendant asserts error in the police submitting pictures including defendant's for identification purposes to the complaining witness without counsel for the defendant being present.

Defendant cites the case of People v. Anderson, 389 Mich. 155, 168--169, 205 N.W.2d 461, 466--467 (1973), as authority for defendant's position that photographs of an accused person may not ordinarily be displayed to witnesses, if defendant is known to be in custody or can be readily produced for a lineup, and, if such a photographic showing is had, the accused is entitled to an opportunity to request and obtain counsel. The defendant in this case was known to be in custody and could have been readily produced for a lineup. If there were no other facts, we would be compelled to remand for the purpose of determining whether the complainant's identification of the defendant has an independent source. However, as is stated in People v. Jackson, 391 Mich. 323, 341, 217 N.W.2d 22, 29 (1974), before such a remand is necessary, there must be a showing that there had been photographic identification by the witness or witnesses. In the instant case, Mrs. Zawacki testified she could not recall the photographic showing; and the police officer who testified he had showed Mrs. Zawacki the pictures of several persons, including defendant, said she did not identify any of the pictures as belonging to defendant. Without an identification being made of defendant at the photographic showing, any subsequent identification of defendant by the complainant would necessarily have to be independent of such showing. The testimony in the case shows that the complainant had ample time and took particular care to observe the defendant on the two occasions when he was in her store on the night in question. We find no reversible error as to this issue.

Ib

Defendant claims that the observation of defendant by complainant at three scheduled preliminary examination proceedings constituted a one-on-one confrontation so impermissibly suggestive as to render the admission of complainant's in-court identification a denial of due process of law.

The defendant was present for a preliminary examination on three occasions: the first time he requested counsel; the second time his counsel desired adjournment for time to prepare the case; the third time the defendant waived preliminary examination. At each time Mrs. Zawacki was required to be present in order to testify. There is no question but that she observed defendant while in attendance at court at these times. There is a discrepancy as to how long she may have observed the defendant on each of these occasions. Defendant was in a holding room at the rear of the courtroom out of sight of the complainant a good share of the time.

Defendant bases his claim of reversible error in this regard on the case of People v. Solomon, 391 Mich. 767, 214 N.W.2d 60 (1974), adopting Chief Judge T. J. Lesinski's dissent in 47 Mich.App. 208, 216, 209 N.W.2d 257, 260 (1973). It is well to observe the holdings per Chief Judge Lesinski's opinion as follows:

1. A preliminary examination is a pretrial confrontation within the meaning of Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967);

2. In ascertaining whether a confrontation is impermissible suggestive a court must look to the 'totality of circumstance' in the particular case;

3. Particularly important factors include (a) the time between the criminal act and the confrontation, and (b) the length of time that the complainant-eyewitness is with the defendant during the offense;

4. Factors peculiar to the Solomon case are: (a) allegation of police suggestions that defendant was the offender; (b) a 2 1/2 year duration between the confrontation and the robbery; (c) the identification of defendant at the preliminary examination was the only identification made by complainant; and (d) the preliminary examination was held in the judge's chambers.

5. The rule of the Solomon dissent is narrow; it does not establish the principle that all confrontations at preliminary examinations are impermissibly suggestive.

In the instant case, there was no allegation of any police suggestions. The length of time between the robbery and the in-court identification was six months. There was no identification of defendant at the preliminary examination, since he waived examination. The proceedings, while they lasted, took place in the courtroom, and defendant was placed in a holding room at the rear of the court. The complainant had ample time to observe defendant just prior to and during the robbery.

The following colloquy took place between complainant and the defense counsel at trial:

'Q. But, your identification was aided by the fact that you saw him in the lower court, is that correct?

'A. In person. True.

'Q. In person. Right. And, that was always without the benefit of anybody else in the same close proximity, which was Mr. Johnson's same size, weight, build, that sort of thing, is that true?

'A. True.'

The complainant also testified that she observed the defendant at the slated preliminary examinations only '(w)hen he was visible and in my sight'. Moreover, the defendant testified that complainant saw him while he was in the holding room at the proceedings. '(S)he did come by and she glanced in the window and looked right at me.'

The above testimony shows: (1) that the complainant did not continually observe the defendant for a total of six to nine hours as the defendant now suggests; (2) that the observations at the pretrial proceedings did in fact aid the complainant in her in-court identification; and (3) the one-on-one nature ...