People v. Jones, Docket No. 12772

• Decision Date: 22 May 1973
• Docket Number: Docket No. 12772,No. 1,1
• Citation: 47 Mich.App. 160,209 N.W.2d 322
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Eugene JONES, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 322

209 N.W.2d 322

47 Mich.App. 160

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Eugene JONES, Defendant-Appellant.

Docket No. 12772.

Court of Appeals of Michigan, Division No. 1.

May 22, 1973.

Rehearing Denied July 25, 1973.

Released for Publication July 25, 1973.

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

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Robert A. Reuther, Asst. Pros. Atty., for plaintiff-appellee.

Before LESINSKI, C.J., and FITZGERALD and VanVALKENBURG, ^* JJ.

LESINSKI, Chief Judge.

Defendant was convicted by a jury on June 22, 1971 of armed robbery, M.C.L.A. § 750.529; M.S.A. § 28.797, and carnal knowledge of a female over 16 years of age, M.C.L.A. § 750.520; M.S.A. § 28.788. He was sentenced to from 10 to 15 years on each count, to run concurrently. He appeals as of right.

On February 28, 1971 at approximately 6:15 a.m., the complainant was waiting for a cab in front of her home on Annabelle in Detroit. A man stopped his car and offered her a ride. When she refused he forced her at gunpoint into the car. He proceeded to rob and rape the complainant. He then dropped her off in a field. She dressed and walked to a gas station.

On March 11, 1971, the complainant identified the defendant in a police lineup as her assailant.

Defendant alleges for the first time on appeal that this lineup was a violation of due process because no one in the lineup physically resembled him. The only evidence linking defendant to this crime was complainant's identification at the lineup and later at trial.

The police who testified at the trial gave no specific information about the lineup. The court appointed attorney designated to represent defendant at the lineup testified that he would not have signed the lineup sheet if the lineup had not been fair. He remembered nothing specific about this lineup. Defendant did not testify at trial. No challenge to the fairness of the lineup was made below. The only evidence we have before us is the opinion testimony that the lineup was fair and the police lineup-card descriptions of each of the lineup participants, which is part of the record.

The police descriptions of the lineup members are as follows:

                               Age   Height  Weight      Hair
                               ----  ------  ------  -------------
                No. 1           26   5'11"    170    Short Natural
                No. 2           31   6'0"     150    Short Natural
                No. 3           38   6'2"     171    Bushy Natural
                No. 4           18   5'10"    170    Short Natural
                No. 5           40   5'9"     150    Short Natural
                  (defendant)
                

The Michigan Department of Corrections lists defendant in 1971 as 44 years old 5 8 tall and 138 pounds. The defense attorney inferred in his summation that defendant was wearing blue work clothes in the lineup, which was held 11 days after the offense. (Complainant described her assailant to police as wearing blue work clothes.)

We are sure only that defendant was the oldest and shortest person in this lineup, and it is possible that he was the only person in the lineup wearing clothing similar to that of the assailant.

Age alone might be sufficient to vitiate a lineup if it caused the defendant to stand out significantly from the other participants in the lineup. We cannot, however, find from this record that the lineup was so unfair as to be violative of due process. The defendant might well have looked younger than his age. The height variations are not substantial enough to come within People v. Wilson, 20 Mich.App. 410, 174 N.W.2d 79 (1969). And there is no evidence that defendant appeared in the lineup in blue work clothes.

We would note the difficulty of determining if one were prejudiced by his age in a lineup without actually seeing the lineup. The difficulty is often equally as great when the defendant alleges the difference of complexion, dress or size. Appellate courts have been extremely hampered in review of such issues because of our dependence on the memory of witnesses. Even an attorney might be unaware of some subtle prejudicial factor in a lineup. Some police departments have eliminated this problem by taking photographs of lineups. We approve and commend such a practice in the interests of due process and the protection of lineup identifications. Such a photographic record would greatly facilitate review of the fairness of the lineup by both the trial and appellate courts.

Even if this lineup were unfair we would not reverse if the witness' in-court identification had an independent basis. People v. Tofil, 31 Mich.App. 342, 188 N.W.2d 63 (1971). Here the complainant testified that she had a good look at defendant's face when he first forced her into the car. Her testimony was unshakable at trial. She testified:

'Q. Why did you identify that one person as opposed to the others that were there?

'A. Because I got a good look at him before I got in the car and he had a thin long face and he had a line mustache, and the way he was dressed, he had on a short jacket, he had on work clothes.'

On cross-examination she further testified:

'Q. Now, tell the jury again, to the best of your recollection, what identifying features you relied upon, in order to pick this defendant out of a lineup two or three weeks later? Please, just take your time, all the time you need.

'A. If I saw him again, I would know him. He had a thin face.

'Q. Thin face?

'A. And had a little mustache. He had on a little short coat, some work looking pants.

'Q. It is the clothing he was wearing which caused you to pick him out rather than the features on his face?

'A. No. His face. His face.

'Q. The only thing about his face was the mustache, isn't that right, and the thin face? Tell us, please. I am not trying to trap you, Mrs. Creaghead.

'A. I noticed how he looked. I know he was a dark fellow. I say, he weighed about a hundred and forty, that was my estimate.'

Defendant next alleges that the use of a 1946 Alabama conviction at sentencing on this conviction was a violation of his constitutional rights because he was not represented by counsel at the Alabama conviction. United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972). Tucker held that use of a conviction to enhance defendant's punishment wherein defendant was denied the right to counsel is to erode the constitutional right to counsel.

Defendant filed an affidavit in which he alleges that he was not represented by counsel at the Alabama conviction and that he was indigent at the time. The trial record indicates that the judge was made aware of this Alabama conviction at sentencing. Although defendant's unsupported allegations are not sufficient to require this Court to remand for resentencing directly, they are sufficient to warrant an evidentiary hearing as to the alleged constitutional infirmity of defendant's Alabama conviction.

In Kitchens v. Smith, 401 U.S. 847, 848, 91 S.Ct. 1089, 1090, 28 L.Ed.2d 519, 521 (1971), the Court reversed a denial of habeas corpus relief by the Georgia Supreme Court. The Georgia Supreme Court denied habeas corpus on the grounds that:

'(P)etitioner did not testify at the Habeas corpus hearing that he 'wanted a lawyer, asked for one, or made any effort to get one' or that 'because of his poverty, or for any other reason, he was unable to hire a lawyer.' 226 Ga. 667, 177 S.E.2d 87--88 (1970).'

A request for an attorney is now irrelevant. But more importantly, the only evidence of indigency, at the time of the conviction, was defendan...