People v. Kachar

Decision Date02 May 1977
Docket NumberNo. 1,O,1
Citation252 N.W.2d 807,400 Mich. 78
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Emil KACHAR, Defendant-Appellant. ct. Term 1975.
CourtMichigan Supreme Court

James J. Rostash, Pros. Atty., Monroe County, Monroe, Prosecuting Attorneys Appellate Service, Edward R. Wilson, Director, Detroit, by Lee Wm. Atkinson, Sp. Asst. Atty. Gen., Lansing, for plaintiff-appellee.

Elizabeth Schwartz, Asst. Defender, F. Martin Tieber, Chief Writer and Researcher, Detroit, for defendant-appellant.

WILLIAMS, Justice.

We granted leave to appeal in this case to set standards for establishing an independent basis for in-court eyewitness identification when pretrial identification has been rendered invalid. We hold that factors supporting such an independent basis must be totally unrelated to any pretrial confrontation and may include factors such as consideration of the opportunity for observation during the crime, prior knowledge of identity, accuracy of description, the existence of any discrepancy between any pre-lineup description and actual description of the defendant, identification of any other individual prior to lineup, failure to identify the defendant on a prior occasion, and the lapse of time between the alleged act and the lineup identification. Because such a basis was not established in the case at bar, we remand this cause for an evidentiary hearing to determine whether an independent source for identification existed.

I FACTS

On March 25, 1971, three men broke into a hardware store and stole a number of guns. Two of the three, James Seals and Charles Parks, later pled guilty to breaking and entering.

Parks maintained that the stolen items were taken in the trunk of Seals' car to a gas station managed by Walter Gorowski. There defendant Emil Kachar allegedly purchased all but one gun for $900. 1 The merchandise was then transferred to defendant's car, with Parks and Gorowski observing.

Over eight months after the breaking and entering, a warrant was issued for the arrest of defendant Kachar on a charge of receiving and concealing the merchandise taken from the hardware store. 2

The identification of defendant as the recipient of the stolen merchandise was crucial.

Two of the three so identifying Kachar were Seals and Parks, who had already pled guilty to the original breaking and entering. The third was Gorowski, the gas station manager.

At the time of trial, Parks had already served 3 1/2 months of a 5-10 year sentence on the charge. He testified to lying to the court previously. 3 Twenty-three months later, he received a special early parole. 4

Seals also identified Kachar as the recipient of the stolen goods. Seals, whose previous felony and misdemeanor convictions were brought out by counsel, was awaiting sentencing on the breaking and entering. He told the jury he expected his testimony to be to his advantage. 5

The third witness who identified Kachar was Walter Gorowski, the gas station manager, who came forward two weeks before Kachar's trial. This was three months after defendant's arrest, and nearly one year after the alleged transaction.

The police showed Gorowski approximately 30 photos, all of which were labelled with the subjects' names. Gorowski indicated he knew Kachar's name was connected with allegedly purchasing the stolen guns. He also said he did not know how to spell Kachar's name. However, Gorowski selected three photos of the defendant without difficulty. Although Kachar had already been arrested, counsel was not present during the photo identification. 6

Gorowski knew both Seals and Parks, but testified that he had never seen defendant before. He stated that Parks came into the station with some guns in the trunk of his car and drove into one of the two service station bays. Gorowski bought one of the guns for $25, but testified he destroyed it "(W)hen I found out where the guns came from." (85a) He admitted he destroyed the evidence because "I thought I would probably get in trouble over it." (118a)

Shortly after his purchase, a maroon car with two men whom he had never seen before entered the service station. Through glass doors, and while he was working, he observed Parks and one of these two men transfer the guns from the trunk of Parks' car into the trunk of the maroon car. Gorowski described this man as "big", observing he "looked like he had a beer belly, he was tall, reminded me of John Wayne." (86a) Gorowski said, however, that he had no idea how the big man was dressed. He was working the entire time the gun transaction took place.

He testified that while the "big guy" was at the station someone pointed him out and said his name was Kachar. However, he also testified that although he had discussed the case with the prosecutor some time before, it was not until the last few hours before trial that he mentioned this. When asked why not, he explained, "I just haven't." (88a)

Two or three weeks before trial, Gorowski said he was sitting at a table in a bar, when someone in his group pointed out defendant. At the time, he said he did not think the person in the bar was the same man he had seen transferring the guns.

However, Gorowski identified defendant who was sitting in the courtroom next to defense counsel as the man he had seen in the service station. He now had no doubt it was the same persons, he said, because he had better lighting in the courtroom than in the bar. Defense counsel's request to admit into evidence a photograph purporting to show the lighting conditions in the bar at the time of the identification was denied. 7

The prosecution had moved to endorse Gorowski the Friday before trial. 8 Defense counsel's original objection to the late endorsement was changed after he interviewed Gorowski and told him that his original identification of Kachar was by photograph and that the man he saw in the bar was not the man he saw in the service station. 9 He was therefore apparently surprised when Gorowski identified the man sitting at the defendant's table as the man with the guns. 10

Kachar was convicted by the jury of receiving stolen property, M.C.L.A. § 750.535; M.S.A. § 28.803, and sentenced to 2 1/2 to 5 years imprisonment. The Court of Appeals affirmed, per curiam, finding that although the showup was improperly conducted in the absence of defense counsel, People v. Anderson, 389 Mich. 155, 187, 205 N.W.2d 461 (1973), Gorowski's in-court identification of Kachar had an independent basis and was therefore not tainted by the defective showups. (19a) The Court of Appeals noted, in particular, that the witness's emphasis in his description "upon defendant's non-facial, corporeal characteristics" 11 suggested that the in-court identification would not readily be tainted by a photograph which concentrated on facial features. (20a) The panel found further support for its conclusion that Gorowski was not prejudiced by the photographic showup in his candor in confessing that the man in the bar did not look like the same person he saw in the service station. (21a) We granted leave to appeal November 21, 1974. 393 Mich. 761.

II The Photographic Identification

The Court of Appeals held that the photographic showup was improper because defense counsel was not present. In People v. Anderson, 389 Mich. 155, 180-181, 205 N.W.2d 461 (1973), we approved the rule then being applied by the Court of Appeals which required that counsel be present at a photographic identification of an accused who is in custody.

We also approved the application of that rule to a situation where defendant, although not in custody, is the focus of investigation. Thus, in People v. Cotton, 38 Mich.App. 763, 769-770, 197 N.W.2d 90, 94 (1972), the Court of Appeals held that counsel must be present at a photographic identification when "(i)ts purpose (is) to build a case against the defendant by eliciting identification evidence, not to extinguish a case against an innocent bystander."

This, of course, is the situation in the instant case, for defendant had already been bound over for trial when Gorowski came forward as a witness. By that time, Kachar could by no means be construed as "an innocent bystander." Thus, not only should counsel have been present at the showup, but, under the circumstances of this case, a photo showup should not have been held at all.

In Anderson we said: "Subject to certain exceptions, identification by photograph should not be used where the accused is in custody." 389 Mich. 186-187, 205 N.W.2d 476 (footnote omitted). (emphasis in original) 12 The use of photographs in the case at bar falls specifically within this prohibition. 13

It is not necessary, however, to look to Anderson to find the photographic showup improper. Gorowski testified that the pictures viewed at the police station were identified and labelled with the names of the subjects. He had had a previous opportunity to correlate the name of defendant with the party involved in the gun transaction, because, at the time of the transaction, a friend pointed out the man purchasing the guns and told Gorowski his name was "Kachar". Therefore, when he saw the photos with the name "Kachar", he may well have recognized the name, not the face. This possibility is further reinforced by Gorowski's focus on identifying the gun purchaser by body build, for at no time did he ever describe defendant's face, or indicate he remembered the gun purchaser's face, or say that there was anything distinctive about the gun purchaser's face, as opposed to his body build. The photographs were apparently of faces.

In Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967), the United States Supreme Court recognized a ground of attack upon a conviction where the identification procedure followed is "so unnecessarily suggestive and conducive to irreparable mistaken identification that (defendant is) denied due process of law". In Simmons v. United States, ...

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