People v. McCuaig

• Decision Date: 18 August 1983
• Docket Number: Docket No. 61111
• Citation: 338 N.W.2d 4,126 Mich.App. 754
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Steven Leslie McCUAIG, Defendant-Appellant. 126 Mich.App. 754, 338 N.W.2d 4
• Court: Court of Appeal of Michigan — District of US

Page 4

338 N.W.2d 4

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Steven Leslie McCUAIG, Defendant-Appellant.

Docket No. 61111.

126 Mich.App. 754, 338 N.W.2d 4

Court of Appeals of Michigan.

Submitted Feb. 8, 1983.

Decided July 6, 1983.

Released for Publication Aug. 18, 1983.

[126 MICHAPP 756] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., L. Brooks Patterson, Pros. Atty., Robert C. Williams, Chief Appellate Asst. Pros. Atty., and Margaret G. Horenstein, Asst. Pros. Atty., for the people.

James Howard Grant, Detroit, for defendant-appellant.

Before DANHOF, C.J., and V.J. BRENNAN and BAGULEY, ^* JJ.

DANHOF, Chief Judge.

Defendant was convicted of criminal sexual conduct in the first-degree, M.C.L. Sec. 750.520b; M.S.A. Sec. 28.788(2), following a bench trial. He was sentenced to a term of from 10 to 25 years [126 MICHAPP 757] in prison. Defendant appeals his conviction as of right.

Defendant's conviction arose out of an incident which occurred during the early morning hours of May 27, 1980. On that date, complainant was driving home from a friend's house when she noticed a dark-colored AMC Jeep stopped at the intersection of 12 Mile Road and Telegraph Road in the City of Southfield. Complainant was travelling on 12 Mile Road at the time. Shortly thereafter, she noticed headlights in her rear-view mirror. She drove to the home of her parents, with whom she resided in Southfield. After she exited from her car, a man appeared and placed his hand over her mouth. He led her to the side of the house where he forced her to engage in an act of fellatio and then fled.

Complainant became hysterical and went into the house where she was met by her mother. Her mother called the police. A description of complainant's assailant and the Jeep she had seen earlier was relayed over the police dispatch. The defendant was stopped at the intersection of 12 Mile Road and Telegraph Road a short time later. He was driving a dark-colored AMC Jeep. Complainant was transported to the scene and identified defendant as her assailant. The identification took place less than 30 minutes after the assault occurred.

Defendant claims that his right to counsel was violated because he was without counsel at the on-the-scene identification. We disagree.

Generally, a defendant is entitled to have counsel present during identification. People v. Jackson, 391 Mich. 323, 217 N.W.2d 22 (1974). However, an exception to the rule exists where a prompt on-the-scene identification is conducted. People v. Tucker, [126 MICHAPP 758] 86 Mich.App. 608, 611, 273 N.W.2d 498 (1978). The reasons for the exception are: (1) it permits the police to ascertain whom to arrest; and (2) such prompt identification may exculpate the person apprehended. People v. Turner, 120 Mich.App. 23, 34-35, 328 N.W.2d 5 (1982).

At present, a split exists among various panels of this Court concerning the scope of the exception. Compare People v. Dixon, 85 Mich.App. 271, 271 N.W.2d 196 (1978), with People v. Coward, 111 Mich.App. 55, 315 N.W.2d 144 (1981). We are of the opinion that the test adopted by the Court in People v. Turner, supra, represents the most well-reasoned approach. In Turner, supra, the Court ruled that police may conduct a prompt on-the-scene identification without counsel being present unless the police have very strong evidence that the person stopped is the culprit. Strong evidence exists where the person apprehended has confessed or presented highly distinctive evidence of the crime or where there is such a close proximity in place and time to the scene of the crime that it is highly likely that the person apprehended is the perpetrator. Turner, 120 Mich.App. pp. 36-37, 328 N.W.2d 5.

In the present case, strong evidence was not present. Although complainant had seen the Jeep on her way home, she did not see it after she left the intersection of 12 Mile Road and Telegraph Road. She could not tell if the headlights she had seen behind her were those of the Jeep. Furthermore, although defendant had grass stains on his pants and other aspects of his appearance presented evidence that he was the culprit, a longer period of time had elapsed between the assault and the time the defendant was stopped than was necessary for a person to travel the distance between the home of the complainant's parents and [126 MICHAPP 759] the place where defendant was stopped. Finally, although complainant had a fairly good opportunity to view her assailant, she was not able to give the police a particularly accurate description concerning the clothing he was wearing.

Defendant next complains that statements he made to police following his arrest should have been suppressed. At the time of his arrest, defendant was informed of his basic rights as spelled out in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). In response thereto, defendant indicated that he wished to remain silent. No further questioning was conducted at that time. However, at approximately 10:20 a.m., after defendant had been transported to the police station, he was again advised of his rights. Defendant indicated that he wished to remain silent and that he wanted to speak with an attorney. The officer responded that he would comply with defendant's request and that no further questioning would take place. However, the officer did advise defendant concerning the nature of the charge against him and described the circumstances which led the police to believe that defendant was the culprit. Defendant responded by stating that the officer had been fair with him and that he had changed his mind and wished to give him a statement. After defendant signed a waiver of rights form, he gave a statement to the police in which he admitted that he had engaged in sex with the complainant. However, he maintained that the encounter was completely consensual. The version of events he testified to at trial was entirely consistent with the statement he made to the police.

Once a criminal defendant invokes his right to counsel all interrogation must cease until counsel is made available unless the accused himself initiates[126 MICHAPP 760] further communication. Edwards v. Arizona, 451 U.S. 477, 484-485, 101 S.Ct. 1880, 1884-1885, 68 L.Ed.2d 378 (1981); People v. Paintman, 412 Mich. 518, 525, 315 N.W.2d 418 (1982). Therefore, the critical determination is whether defendant initiated the questioning or whether defendant's statement was made in response to further interrogation by the police officer. People v. Lytal, 415 Mich. 603, 614, 329 N.W.2d 738 (1982).

In our opinion, the statements made by the police officer, which merely advised defendant of the crime with which he was charged and which described the events which led to that charge, cannot be characterized as further interrogation by the officer or its functional equivalent. See Rhode Island v. Innis, 446 U.S. 291, 300-301, 100 S.Ct. 1682, 1689-1690, 64 L.Ed.2d 297 (1980). The nature of the statements were not such that it can be said that they were intended to elicit a response. Furthermore, the record does not support a finding that the officer should have known that defendant was likely to change his mind in response to the statement. On the contrary, the statement was made in connection with the officer's acknowledgment that he...