People v. Kurylczyk

Decision Date20 August 1993
Docket NumberDocket No. 91867,No. 2,2
Citation505 N.W.2d 528,443 Mich. 289
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Albin J. KURYLCZYK, Defendant-Appellant. Calendar
CourtMichigan Supreme Court

St. Clair County Pros. Atty., Robert J. Nickerson by Timothy K. Morris, Asst. Pros. Atty., Port Huron, for plaintiff-appellee.

State Appellate Defender Office by Amy Neville, Asst. Defender, Detroit, for defendant-appellant.



Defendant challenges his convictions of bank robbery 1 and possession of a firearm during the commission of a felony 2 on the ground that pretrial procedures used for identification purposes deprived him of his constitutional rights of the assistance of counsel 3 and a fair trial. 4 Upon review, we find no error requiring reversal and affirm the decision of the Court of Appeals.


On August 8, 1988, the Fort Gratiot branch of the People's Bank in Port Huron was robbed of more than $22,000 (including approximately $600 in Canadian currency) by a man armed with a sawed-off shotgun who escaped in an older model black Chrysler. Three bank tellers, the branch manager, and a customer witnessed the robbery and gave descriptions of the robber and his car to investigators. In addition, photographs of the robber were taken by the bank's surveillance camera. The photographs matched the descriptions given by the eyewitnesses: The perpetrator was a heavy, white man wearing a baseball cap, a short-sleeved shirt, and jeans, and he had a wallet attached to a chain extending from a belt or belt loop, commonly referred to as a trucker's wallet.

After two of the surveillance photographs were published in a local newspaper a few days after the crime, the St. Clair County Sheriff's Department received several phone calls regarding the robbery. At least one caller identified defendant Albin Kurylczyk as the man in the photographs. This information prompted a detective and an FBI agent to visit defendant at his home on August 17, 1988. At their request, defendant permitted the officers to search his house and his car, which was similar to the getaway car described by the eyewitnesses. He also agreed to accompany the investigators to the local police station for further interviews. Once there, he consented to be photographed by the detective. At that time, he was not represented by counsel, nor did he make any request for counsel.

On the same day that defendant was being interviewed, other deputies responded to a call from the bank. Two of the tellers believed the robber may have returned when a customer, dressed like the robber, entered the bank and attempted to exchange some Canadian currency. The tellers detained him by delaying his transaction until the deputies arrived. However, after an investigation, the law enforcement authorities were satisfied that this customer was not the bank robber. He was not included in any of the subsequent identification procedures that are challenged in this appeal.

Two days later, on August 19, the detective assembled an array of six photographs, including the photograph he had taken of defendant and one of another suspect. The array was shown to two of the five eyewitnesses, bank tellers Mary Kamendat and Cindy Dortman. Both identified defendant Kurylczyk as the bank robber. As a result, defendant was arrested and arraigned.

Following the arraignment on August 20, 1988, as he was being led from the courthouse, defendant's photograph was taken by a news reporter. This photograph, a close-up shot of defendant's face, later appeared in color on the front page of the local newspaper.

On August 26, 1988, after publication of the color photograph in the newspaper, defendant participated in a corporeal lineup, at which he was represented by counsel. All six men in the lineup wore "jail greens"--standard issue pants for individuals being held in jail--and light blue short-sleeved shirts. The five witnesses from the bank were brought separately into the lineup room to view the men. Each witness identified defendant as the robber, and each provided in writing her reasons for making that identification.

Before trial, defendant moved to exclude the identification testimony of the eyewitnesses. A Wade hearing was conducted, 5 at which defendant first argued that the photograph identification procedure was tainted. He claimed that the arrangement and size of the pictures caused his photograph to stand out from the others. Pointing to the publication in the newspaper of the bank's surveillance photograph, defendant argued that the witnesses had relied on the published photograph, rather than on their own memories of the actual robbery. Finally, defendant contended that the photographic lineup was defective because he was not then represented by counsel.

Defendant next argued that the corporeal lineup was also tainted. As with the array of photographs, he claimed that he was singled out from the others by his clothing and appearance. In addition, he asserted that publication in the local newspaper of the surveillance photographs and the postarraignment photograph had rendered defective the identifications made by witnesses at the corporeal lineup.

The trial court denied the motion, finding that neither the photographic lineup nor the corporeal lineup was impermissibly suggestive; indeed, the trial judge stated that he was "astounded" at the similarity of the individual participants in both lineups and concluded that the pretrial identification process had not been improperly affected by the published photographs.

At trial, all five eyewitnesses testified regarding their pretrial identifications of defendant, and each also identified defendant in court as the person who robbed the bank. Defendant testified in his own defense and presented testimony by neighbors and business acquaintances in support of an alibi defense and his reputation for truthfulness. Defendant also presented expert testimony regarding the nature of eyewitness identifications and the likelihood of erroneous identification.

The jury convicted defendant of the bank robbery and felony-firearm charges. Subsequently, he pleaded guilty to a second felony habitual offender charge, 6 and was sentenced to ten to forty years imprisonment and to a two-year consecutive term for the felony-firearm conviction. The Court of Appeals affirmed in an unpublished per curiam opinion. This Court then granted leave to appeal. 439 Mich. 1002, 484 N.W.2d 669 (1992). 7


Defendant presents two challenges to the photographic lineup that was conducted before his arrest. First, he contends that he was entitled to the assistance of counsel during the photographic lineup. Second, he argues that the photographic lineup was impermissibly suggestive in violation of his Fourteenth Amendment right of due process. We shall consider each of these challenges in turn.


The Sixth Amendment of the United States Constitution guarantees to one who has been criminally accused the right "to have the Assistance of Counsel for his defence." This right is not limited to the formal trial, but extends to all " 'critical' stages" of the criminal proceeding. United States v. Wade, 388 U.S. 218, 224, 87 S.Ct. 1926, 1931, 18 L.Ed.2d 1149 (1967). For example, a person accused of a crime has the right to counsel at certain pretrial arraignments, Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), or during custodial interrogations, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Indeed, "the accused is guaranteed that he need not stand alone against the State at any stage of the prosecution, formal or informal, in court or out, where counsel's absence might derogate from the accused's right to a fair trial." Wade, 388 U.S. 226, 87 S.Ct. at 1932.

In Wade, the Court referred to the postindictment corporeal lineup as a "confrontation compelled by the State between the accused and the victim or witnesses to a crime," 388 U.S. at 228, 87 S.Ct. at 1933 and ruled that it is a critical stage of the prosecution at which the accused is as much entitled to the aid of counsel as at the trial itself. 388 U.S. at 237, 87 S.Ct. at 1937.

Six years later, the Court determined that "the Sixth Amendment does not grant the right to counsel at photographic displays conducted by theGovernment for the purpose of allowing a witness to attempt an identification of the offender." United States v. Ash, 413 U.S. 300, 321, 93 S.Ct. 2568, 2579, 37 L.Ed.2d 619 (1973). Noting that the accused is not present at such a photographic display, the Court compared this procedure to "the prosecutor's other interviews with the victim or other witnesses before trial." 413 U.S. at 325, 93 S.Ct. at 2581. The Court was "not persuaded that the risks inherent in the use of photographic displays are so pernicious that an extraordinary system of safeguards is required." 413 U.S. at 321, 93 S.Ct. at 2579.

Although the United States Supreme Court decisions do not require counsel at a photographic lineup, defendant argues that decisions of this Court do impose such a requirement. He maintains that Michigan courts have been more suspicious of photographic identifications than the federal courts, and have therefore imposed greater safeguards regarding their use.

Defendant relies primarily on our decision in People v. Franklin Anderson, 389 Mich. 155, 205 N.W.2d 461 (1973). There, this Court extensively reviewed numerous cases from other jurisdictions, as well as the psychological literature regarding photographic identifications and concluded that

"there are serious problems concerning the accuracy of eyewitness identification and that real prospects for error inhere in the very process of identification completely independent of the subjective accuracy, completeness or good faith of witnesses." 389 Mich. at 180, 205 N.W.2d 461.

Because of the Court's distrust of photographic ...

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