People v. Lee, 2

Decision Date21 May 1974
Docket NumberNo. 2,J,2
Citation391 Mich. 618,218 N.W.2d 655
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Doursey Wilson LEE, Defendant-Appellant. an. Term. 391 Mich. 618, 218 N.W.2d 655
CourtMichigan Supreme Court

Noel G. Petersen, Chief Asst. Pros. Atty., County of Calhoun, Marshall, for defendant-appellant.

State Appellate Defender Office by John A. Lydick, Asst. Defender, Detroit, for plaintiff-appellee.

Before the Entire Bench.

WILLIAMS, Justice.

Defendant's appeal opens a veritable Pandora's Box of issues, three of which are of significant importance:

1. Does a pre-custody photographic showup require counsel where defendant is a possible suspect?

2. Can the trial court excuse recordation of final argument where both prosecutor and defense counsel agree?

3. May a presentence report include pending charges and may the trial court read or consider them?

Two important but less significant issues because they do not raise novel questions are whether the alibi instruction was proper and whether the complaining witness could testify as to an alleged threat without the alleged threatener also being called as a witness.

On no issue do we find reversible error.

I--FACTS AND PROCEEDINGS

On April 14, 1971, a jury found defendant Lee guilty of the armed robbery of a dry-cleaning store, an offense 'punishable by imprisonment in the state prison for life or for any term of years.' M.C.L.A. § 750.529; M.S.A. § 28.797.

The defense at trial was founded on the testimony of two alibi witnesses, defendant's wife and mother. The prosecution's case rested on the testimony of three witnesses: the counter clerk, Mrs. Crandall, who was allegedly confronted by the robber and forced at gun point to hand over approximately $150 from the cash register; and two other witnesses who had observed the suspect but not the robbery. Mrs. Crandall did not make an identification from a photo display shown two hours after the robbery, or from another display shown the next day. Lee's photograph was included in a third 8-photo display shown Mrs. Crandall six days after the robbery, after a police sergeant had observed the similarity of Lee's clothing to Mrs. Crandall's description of the robber's clothing. She identified the photograph of Lee as the man the thought had robbed her. Following that identification, Lee was formally arrested.

Subsequent to his arrest, a corporeal lineup was held at which the defendant was represented by court-appointed counsel 1 and Mrs. Crandall identified another man 6 3 tall as the robber (Lee is 5 6 tall), although she had previously described the robber as 5 6 to 5 7 tall! Mrs. Crandall positively identified Lee at his preliminary examination and at his trial. She explained, on redirect examination by the prosecutor at trial, that her misidentification at the corporeal lineup was due to fear and nervousness. Lee was sentenced to 6 to 20 years imprisonment. The Court of Appeals affirmed Lee's conviction in an unpublished memorandum opinion.

II--PRE-CUSTODY PHOTOGRAPHIC LINEUP

Doursey Lee was arrested after the complaining witness, Mrs. Crandall, identified his photograph from an 8-photo display shown her six days after the robbery. The investigating officers regarded Lee as a possible suspect on the basis of the similarity of his clothing to that reportedly worn by the robber. However, it would be questionable that such suspicion would be sufficient probable cause for an arrest warrant. Furthermore, Lee had not yet been approached or questioned by the police, and Was not in custody when the photographic identification was made.

Lee argues that the counselless photographic showup violated his Sixth Amendment right to counsel and so tainted the complaining witness' later identification of him at his preliminary examination and trialas to require reversal of his conviction. He contends that his right to counsel had attached by the time the police showed a 'mug shot' of him to the complaining witness. He argues that since the police investigation had 'focused' suspicion on him on the basis of the clothes similarity, the uncounselled photographic display was improper because its purpose was to build a case against him by eliciting identification evidence, and not merely to extinguish a case against an innocent bystander.

This Court has not previously ruled on the right to counsel at pre-custody photographic showups. In our recent decision in People v. Franklin Anderson, 389 Mich. 155, 186--187, 205 N.W.2d 461, 476 (1973) we stated that:

'1. Subject to certain exceptions, identification by photograph should not be used where the accused is in custody.

'2. Where there is a legitimate reason to use photographs for identification of an in-custody accused, he has the right to counsel as much as he would for corporeal identification procedures.'

Clearly, the instant case does not come within Anderson's proscription of identification by photograph since the conclusions drawn in that case presume custody of the defendant. In People v. Jackson, 391 Mich. 323, 217 N.W.2d 22 (1974), we adhered to our Anderson approach after consideration of the recent United States Supreme Court decision in United States v. Ash, 2 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973).

In the companion case of People v. James Anderson, 391 Mich. ---, 216 N.W.2d 780 (1974), we stated that:

'(i)t is the fact of custody that requires implementation of the Franklin Anderson rule . . ..'

The Franklin Anderson rule attaches with custody. Compare People v. Cesarz, 44 Ill.2d 180, 255 N.E.2d 1, 4 (1969); United States v. Zeiler, 427 F.2d 1305, 1307 (CA 3, 1970); State v. Keel, 5 N.C.App. 330, 335--336, 168 S.E.2d 465, 468--469 (1969). Defense counsel's argument that the right to counsel attaches once 'an investigation has focused' on a particular suspect is an inaccurate one, insofar as it is supposed to refer to 'pre-custody' investigations. The cases to which the defendant refers are in-custody not pre-custody cases.

We decline to extend the reasoning of Franklin Anderson to the pre-custody, pre-questioning, mere suspicion phase that was evidenced here. It is not feasible to require appointment of counsel in cases of pre-custody photographic showups where there is no detention of the defendant since under such a rule each photograph arguably depicts a suspect and therefore each person whose photograph appears in the photographic display, or perhaps even the 'mug book' would require the representation of counsel. That would be impossible and absurd.

Even though we do not require the presence of counsel at the pre-custody photographic indentification stage, we recognize that an improper photographic identification procedure may bias the case against the accused--because the procedure may be so suggestive as to identify a picture in the witness's mind with the defendant, or because of the psychological compulsion to stick by a previous identification. See People v. Franklin Anderson, 389 Mich. 155, 215--220, 205 N.E.2d 461; P. Wall, Eye-Witness Identification in Criminal Cases, 66--89 (1965, 2d Printing 1971); comment, Criminal Procedure--Photo Identifications, 43 N.Y.U.L.Rev. 1019 (1968). Therefore, it is important that there be safeguards to protect the innocent from misidentification. The showup procedures must minimize suggestiveness for viewers whenever possible.

The fairness of the identification procedure must be evaluated in the light of the totality of the circumstances. The test is the degree of suggestion inherent in the manner in which the suspect's photograph is presented to the witness for identification. See United States v. Zeiler, Supra, 427 F.2d 1308; State v. Rowe, 77 Wash.2d 955, 468 P.2d 1000, 1001--1002 (1970), and People v. Eubank, 46 Ill.2d 383, 384--388, 263 N.E.2d 869, 871--873. The United States Supreme Court stated in Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968), that:

'. . . convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was So impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.' (Emphasis added.)

We do not examine the question of suggestiveness because there was no motion at trial to suppress the photographic identification testimony, nor evidentiary hearing on this matter to give us a record on which to make a judgment.

III--WAIVER OF RECORDATION OF FINAL ARGUMENTS

Error is assigned to the waiver of recordation of the final arguments of counsel. After the prosecutor had apparently argued a substantial portion of his closing summation to the jury, the recording of further arguments was excused by the trial judge with the agreement by stipulation of the prosecutor and defense attorney. 3

M.C.L.A. § 600.1111; M.S.A. § 27A.1111 provides:

'The stenographer shall perform the duties assigned by the rules of the supreme court, and by the court to which he is appointed, under the supervision of a judge of the court to which he is appointed.'

The pertinent court rule, GCR 1963, 915.2, provides in part:

'.2 Attendance at Court; Taking Testimony

'(1) The stenographer shall attend the court under the direction of the judge thereof, and take a verbatim record of the following:

'(c) in jury trials, the opening statements and final arguments;

'(2) The stenographer who commences to record a case shall take the record of the entire case unless he shows good cause for failure to do so, or is otherwise excused by the trial judge.' 4

Lee contends that the right to a complete trial transcript is a fundamental constitutional right under Const.1963, art. 1, § 20, 5 and under the federally guaranteed rights to equal protection and due process of law. Therefore, Lee argues that the right to a full and complete trial transcript cannot be waived by the defense lawyer except with the...

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