People v. Johnson

• Decision Date: 25 February 1975
• Docket Number: No. 2,Docket No. 19449,2
• Citation: 229 N.W.2d 372,59 Mich.App. 187
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard JOHNSON, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 372

229 N.W.2d 372

59 Mich.App. 187

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

Docket No. 19449.

Court of Appeals of Michigan, Division No. 2.

Feb. 25, 1975.

Released for Publication June 4, 1975.

Osis M. Underwood, Jr., Pontiac, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., L. Brooks Patterson, Pros. Atty., for plaintiff-appellee.

Before T. M. BURNS, P.J., and HOLBROOK and KELLY, JJ.

PER CURIAM.

Defendant Richard Johnson was convicted by a jury of the offense of larceny in a building. M.C.L.A. § 750.360; M.S.A. § 28.592. He was sentenced to a term of 2 1/2 to 4 years in prison and now appeals as of right.

Evidence produced at trial revealed that at approximately 4:30 p.m. on October 2, 1973, while at work at a Sears Roebuck & Company merchandise sales warehouse in Pontiac, Michigan, salesman Robert Lempky noticed a prospective customer in the sales area. He approached the man, inquired if he could be of any assistance, whereupon the man replied that he was just looking. At the time of this brief encounter, the salesman was only a few feet away from the man and had the opportunity to look directly at his face.

The salesman then left the man and returned to other business. A few minutes later, the salesman saw the man run past and out of the warehouse with a television in his hands. The salesman followed and observed the man get into an automobile and put the television in his lap. The car then pulled away with a second man doing the driving.

The salesman was able to provide the police with a description of the vehicle as well as its license plate number. In less than half an hour, approximately two miles from the warehouse, two Pontiac police officers stopped a car matching the description and license number of the vehicle described by the salesman and arrested its two occupants. Both the vehicle and its occupants were immediately returned to the Sears warehouse, whereupon the salesman identified defendant as the man who ran out of the warehouse with a television.

Defendant's primary allegation of error is that his return to the scene of the incident and his subsequent identification by the witness to the incident violated the rules of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), in that he did not have counsel available at the time. However, Wade does not require that counsel be present at all pretrial confrontations. People v. Foster, 51 Mich.App. 213, 218, 214 N.W.2d 723 (1974), People v Hutton, 21 Mich.App. 312, 175 N.W.2d 860 (1970). Michigan courts have held that the requirement of counsel at an identification does not apply where the identification is an 'in-the-field' type and is a reasonable police practice. People v. Foster, Supra, People v. Anderson, 389 Mich. 155, 205 N.W.2d 461 (1973); People v. Wright, 38 Mich.App. 427, 431, 196 N.W.2d 839 (1972). We conclude that in the case at bar the return of the defendant to the scene of the incident was a reasonable police practice and...