People v. Marks

Decision Date02 February 1987
Docket NumberDocket Nos. 79338,80346
Citation155 Mich.App. 203,399 N.W.2d 469
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ervin Jovan MARKS, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Pamela Patrice HOLMES, Defendant-Appellant. 155 Mich.App. 203, 399 N.W.2d 469
CourtCourt of Appeal of Michigan — District of US

[155 MICHAPP 204] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Robert E. Weiss, Pros. Atty., Donald A. Kuebler, Chief, Appellate Div., and Edwin R. Brown, Asst. Pros. Atty., for the people.

Steven W. Moulton, Flint, for Ervin Jovan Marks.

Francine Cullari de Sanchez, Grand Blanc, for Pamela Patrice Holmes.

[155 MICHAPP 205] Before WAHLS, P.J., and MacKENZIE and TAHVONEN *, JJ.

WAHLS, Presiding Judge.

Defendants were convicted of breaking and entering an unoccupied building, M.C.L. Sec. 750.110; M.S.A. Sec. 28.305. Marks was sentenced to a prison term of from five to ten years. Holmes was sentenced to a term of from thirty months to ten years. Both defendants appeal as of right.

On November 5, 1983, at approximately 5:53 a.m., an alarm came in from Jan's Hair Fashions to the Silent Alarm Company. The Flint Police Department was immediately contacted and Officers Thomas Hilgendorf and Joel Florida were dispatched to Jan's. As the officers pulled into Jan's driveway, Hilgendorf saw two individuals standing four to six feet in front of the side door. The two ran in opposite directions upon sighting the police. Hilgendorf apprehended Holmes while Florida caught Marks. Florida observed perspiration on Marks' face and neck, and wood chips and ceiling tile fragments on his hair, neck and clothing. After apprehending the two suspects, the officers checked the building and saw scuff marks on the east rear wall.

Tauheed Mateen, an employee of Church's Fried Chicken, located across the lot from Jan's, was closing the restaurant at the time. Looking out of the restaurant's window, he saw a tall, slim man with a long afro, dark pants and a jacket disappear behind Jan's and later come out of Jan's and walk around the building while carrying a bag. He next saw the police car arrive and observed the officers get out of the cruiser. However, he did not see a woman at the scene nor did he see the officers chase anyone. After the officers had placed Marks and Holmes in the police car, Mateen approached[155 MICHAPP 206] the officers and told Officer Florida that he saw who broke into Jan's. Florida asked if the person Mateen saw was the man in the cruiser (Marks) and Mateen responded affirmatively. On cross-examination at trial, Mateen admitted that he was unable to see the suspect's face from the restaurant because he was too far away.

Rodney Simpson, the husband of the owner of Jan's, arrived at the scene and unlocked a door. He entered the building with Officers Florida and Hilgendorf, observed a number of wastepaper baskets filled with beauty equipment, and further noticed that a portable television set and radio were missing. At that time, Simpson also discovered a square hole in the bathroom ceiling, which was made of one-inch thick plywood. Later that day, Simpson found a claw hammer and a screwdriver. These tools did not belong to Simpson, his wife or any of the store's employees.

Marks and Holmes were transported to the police station, where Officer Hilgendorf also observed wood chips in Marks' clothing and a white powdery substance and pieces of white ceiling tile on his pants. The clothing was stored in an evidence locker, "bunched together." As a result, when the clothing was produced at trial, it did not contain all the wood chips and other particles as they were observed at the crime scene. The police did not conduct a laboratory analysis to determine if the particles on the clothing matched the material from Jan's bathroom ceiling.

Marks and Holmes were interviewed separately at the station. Sergeant Acy Butler testified that he interviewed Holmes from approximately 6:30 to 7:00 a.m. on November 5, 1983. After waiving her Miranda 1 rights, Holmes told Butler that, at the [155 MICHAPP 207] time of her arrest, she was passing by Jan's with Marks while on the way to the E-Z Stop party store to purchase diapers and milk for her baby and that she knew nothing about the break-in. Butler next interviewed Marks, who corroborated Holmes' account. At trial, an employee of Jan's testified that the E-Z Stop store is six blocks away from Jan's and is closed from approximately 2:00 a.m. to 7:00 a.m.

Both defendants took the stand on their own behalves and insisted that they knew nothing about the burglary. Holmes testified that during the evening of November 4, 1983, she went to the home of Marks' father because she needed money to purchase diapers and milk. During this time, her upstairs neighbor watched her children. Because Marks was not at his father's home at the time she arrived, Holmes left a message and returned to her residence. Marks' father corroborated this testimony and further stated that he refused to lend Holmes money because she was already in debt to him.

Meanwhile, Marks was at the Dirty Disco, an afterhours nightclub. Upon returning to his father's home early in the morning of November 5, 1983, his father gave him Holmes' message and lent him $10. Marks went to Holmes' residence and the two went to the E-Z Stop store. On the way to the store, the two approached Jan's. Holmes decided to take a shortcut across the lot behind Jan's and agreed to meet Marks again in front of the Church's restaurant. Both defendants testified that, while Holmes was behind Jan's and Marks was in front of the building, the police officers arrived and immediately placed them under arrest. According to Marks, he and Holmes decided to go to the E-Z Stop store because they had seen a 24-hour sign in front of that store and [155 MICHAPP 208] they knew that the other stores nearby would be closed. Marks also explained that his clothing contained wood chips at the time of his arrest because, the night before the arrest, he put plywood on a table top for Roger Brownlee. Marks stated that he wore his dirty work clothes to the Dirty Disco, he did not run away from Officer Florida, and, contrary to Florida's testimony, he was not sweating or breathing heavily at the time of his arrest. Brownlee corroborated that Marks did indeed do carpentry work for him the day before, but this involved only the construction of steps for a trailer.

I

Defendant Marks argues that he should not have been subjected to the on-the-scene identification procedure without the presence of counsel. He asserts that the procedure as conducted violated his Sixth Amendment right to counsel. We disagree.

A

Actually, the Sixth Amendment does not apply to the "pre-indictment" identification in this case. The basis for defendant Marks' assumption that it does is easily documented. In People v. Anderson, 389 Mich. 155, 168, 205 N.W.2d 461 (1973), our Supreme Court concluded that defendants are entitled to counsel at all pretrial identification procedures, on the basis of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). Considering that Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), contained no majority opinion, our Supreme Court concluded that Kirby provided no basis for distinguishing [155 MICHAPP 209] between "pre-indictment" and "post-indictment" cases. 389 Mich. 171, 205 N.W.2d 461. The Court acknowledged that justifications for the absence of counsel did exist and identified three:

"(1) 'intelligent' waiver of counsel by the accused, see e.g., People v Shipp, 21 Mich App 415 (1970); (2) emergency situations requiring immediate identification, see e.g., People v Adams, 19 Mich App 131, 133 (1969); (3) prompt, 'on-the-scene' corporeal identifications within minutes of the crime, see e.g., Russell v United States, 133 US App DC 77; 408 F2d 1280 (1969)." 389 Mich. 187, n. 23, 205 N.W.2d 461 (emphasis in original).

Since Anderson, the question of on-the-scene identification has been raised in the context of the "constitutional right to counsel," see e.g., People v. Wilki, 132 Mich.App. 140, 142, 347 N.W.2d 735 (1984), and specifically the "Sixth Amendment right to counsel," see e.g., People v. Fields, 125 Mich.App. 377, 380, 336 N.W.2d 478 (1983); People v. Turner, 120 Mich.App. 23, 33-34, 328 N.W.2d 5 (1982), lv. den. 417 Mich. 1064 (1983); People v. Coward, 111 Mich.App. 55, 62, 315 N.W.2d 144 (1981), lv. den. 417 Mich. 873 (1983).

While Anderson and the above cases from this Court at first glance appear to be Sixth Amendment cases, further inquiry reveals otherwise. In People v. Jackson, 391 Mich. 323, 338, 217 N.W.2d 22 (1974), the Supreme Court observed that the Anderson rules "represent the conclusion of this Court, independent of any Federal constitutional mandate, that, both before and after commencement of the judicial phase of a prosecution, a suspect is entitled to be represented by counsel at a corporeal identification." Furthermore, were Anderson a statement of Sixth Amendment law, it [155 MICHAPP 210] would no longer be controlling, because the United States Supreme Court has since approved of the distinction drawn by the Kirby plurality but rejected in Anderson. In Moore v. Illinois, 434 U.S. 220, 226-227, 98 S.Ct. 458, 463-464, 54 L.Ed.2d 424 (1977), the Court said,

"In Kirby v. Illinois, 406 U.S. 682 [92 S.Ct. 1877, 32 L.Ed.2d 411] (1972), the plurality opinion made clear that the right to counsel announced in Wade and Gilbert [v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) ] attaches only to corporeal identifications conducted 'at or after the initiation of adversary judicial criminal proceedings--whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.' 406 U.S., at 689 [92 S.Ct. 1877, at 1882, 32 L.Ed.2d 411]. This is so...

To continue reading

Request your trial
8 cases
  • People v. Coy
    • United States
    • Court of Appeal of Michigan — District of US
    • October 7, 2003
    ...to accord a defendant due process. Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988); People v. Marks, 155 Mich.App. 203, 219, 399 N.W.2d 469 (1986). Nor does due process require that the prosecution seek and find exculpatory evidence. People v. Miller (After Rem......
  • People v. Hickman, Docket No. 122548. Calendar No. 1.
    • United States
    • Michigan Supreme Court
    • July 20, 2004
    ...the Anderson decision generated considerable confusion regarding its proper application. First, the Court in People v. Marks, 155 Mich.App. 203, 209-210, 399 N.W.2d 469 (1986), noted that although Anderson appeared to be a Sixth Amendment case, it was really divorced from any constitutional......
  • People v. Reinhardt
    • United States
    • Court of Appeal of Michigan — District of US
    • May 31, 1988
    ...407 Mich. 354, 368, 285 N.W.2d 284 (1979), cert. den. 449 U.S. 885, 101 S.Ct. 239, 66 L.Ed.2d 110 (1980); People v. Marks, 155 Mich.App. 203, 219, 399 N.W.2d 469 (1986). Sexual penetration is an element of the offense of first-degree criminal sexual conduct, M.C.L. Sec. 750.520b(1); M.S.A. ......
  • People v. Calloway
    • United States
    • Court of Appeal of Michigan — District of US
    • August 11, 1988
    ...407 Mich. 354, 368, 285 N.W.2d 284 (1979), cert. den. 449 U.S. 885; 101 S.Ct. 239; 66 L.Ed.2d 110 (1980); People v. Marks, 155 Mich.App. 203, 219, 399 N.W.2d 469 (1986). It is well-settled that the credibility of witnesses is a matter within the province of the jury. Johnson v. Corbet, 423 ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT