People v. Miller

• Decision Date: 06 February 1995
• Docket Number: Docket No. 163510
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Danny Joe MILLER, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 819

528 N.W.2d 819

208 Mich.App. 495

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Danny Joe MILLER, Defendant-Appellant.

Docket No. 163510.

Court of Appeals of Michigan.

Submitted Nov. 15, 1994, at Detroit.

Decided Feb. 6, 1995, at 9:10 a.m.

Released for Publication March 21, 1995.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of Research, Training, and Appeals, and Carolyn M. Breen, Asst. Pros., for the People.

John D. Lazar, Royal Oak, for defendant on appeal.

Before HOOD, P.J., and JANSEN and DAVIS, ^* JJ.

JANSEN, Judge.

Following a jury trial in the Recorder's Court for the City of Detroit, defendant was convicted of armed robbery, M.C.L. § 750.529; M.S.A. § 28.797, possession of a firearm during the commission of a felony, second offense, M.C.L. § 750.227b; M.S.A. § 28.424(2), and felonious assault, M.C.L. § 750.82; M.S.A. § 28.277, arising out of two separate cases that were consolidated for trial. The trial court sentenced defendant to five to fifteen years' imprisonment for the conviction of armed robbery, to be served consecutively to a five-year term for the conviction of felony-firearm. Defendant was sentenced to thirty-two months' to four years' imprisonment for the conviction of felonious assault, to be served concurrently with the other two sentences. Defendant appeals as of right, and we affirm.

I

The incident occurred on September 9, 1992, at approximately 5:30 p.m. at Beck's Liquor Store in Van Buren Township. Matthew Daman, the cashier working at the store at that time, stated that defendant first entered the store and went to the beer cooler. Defendant took out a twelve-pack of Budweiser beer and placed it on the counter. He searched his pockets and told Daman that his money was in the car and that he would return after going to the car. A few minutes later, defendant returned with a shotgun and aimed it at Daman. Defendant picked up the beer with one hand, while holding the shotgun with the other hand. Defendant said, "Thank you for the beer," and walked out of the store. Once defendant was near the door, he said, "Thank you, this beer is on the house."

Daman ran after defendant and saw him drive away in a white truck with a white top. Daman saw some of the license plate numbers. Daman went back to the store, called the police, and gave them a description of defendant's vehicle and the direction in which defendant was traveling. Van Burean Township Police Officer Fred Sweet stated that he received a radio report of an armed robbery at Beck's Party Store. Sweet received both a description that the assailant was a white male with a shotgun who was driving a white pickup truck with a white cab and information concerning some of the license plate numbers.

As Sweet was driving toward Beck's, he observed a pickup truck matching the description given. Once behind the truck, Sweet noticed that the license plate numbers given to him matched those on the truck. Sweet engaged his siren, and defendant sped away. Three patrol cars began to chase defendant. Sweet drove alongside defendant's truck and saw him drinking from a can of Budweiser beer. Defendant then entered Sweet's lane and attempted to push Sweet's car off the road. Defendant hit Sweet's car three or four times. Sweet was able to get in front of defendant, and he saw defendant pick up a shotgun. Sweet then heard a gunshot, and defendant again drove beside Sweet and rammed the side of Sweet's car twice. Ultimately, defendant lost control of his truck, and it rolled onto a grass median on I-94.

The police officers apprehended defendant. Inside the truck was a shotgun, several shotgun shells, empty beer cans, and several unopened beer cans. John Gora, the officer in charge of the case, arrived shortly thereafter. Defendant was in the back seat of a patrol car. Gora then went to the police station, where Daman was giving a statement, and brought Daman to the scene of the crash. Daman identified defendant as the person who committed the robbery. Daman was taken back to the police station, and defendant was taken to the police station in a separate vehicle.

II

Defendant first argues that Daman's on-the-scene identification of him was improper because it was taken in violation of his right to counsel. We note that while defendant did not raise this issue below, it involves an important legal issue for which the facts are sufficiently presented. However, we conclude that this was plain, unpreserved error that was not decisive of the outcome or prejudicial to defendant. People v. Grant, 445 Mich. 535, 553, 520 N.W.2d 123 (1994).

Defendant bases his argument that he was entitled to counsel at the on-the-scene identification pursuant to Michigan case law. Indeed, defendant's argument could not be premised on the Sixth Amendment right to counsel. Clearly, the Sixth Amendment right to counsel did not attach here because the corporeal identification was not conducted at or after the initiation of adversary judicial proceedings. Moore v. Illinois, 434 U.S. 220, 226-227, 98 S.Ct. 458, 463-464, 54 L.Ed.2d 424 (1977); People v. Anderson (After Remand), 446 Mich. 392, 402, 521 N.W.2d 538 (1994).

In People v. Jackson, 391 Mich. 323, 338, 217 N.W.2d 22 (1974), our Supreme Court stated:

[I]ndependent of any Federal constitutional mandate, ... 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 or a photographic identification unless the circumstances justify the conduct of an identification procedure before the suspect can be given an opportunity to request and obtain counsel and that, except in exigent circumstances, photographs of a suspect known to be in custody or who can readily be produced for a lineup may not be displayed to witnesses.

This rule has been somewhat limited by the Supreme Court in People v. Kurylczyk, 443 Mich. 289, 302, 505 N.W.2d 528 (1993), where the Court held that in the case of photographic identifications, the right of counsel attaches with custody.

The Supreme Court has noted in dicta that a recognized justification for the absence of counsel at an eyewitness identification procedure exists where there is a prompt on-the-scene corporeal identification within minutes of the crime. People v. Anderson, 389 Mich. 155, 187, n. 23; 205 N.W.2d 461 (1973). Therefore, the question is whether, under Michigan case law, defendant was entitled to counsel at the corporeal identification conducted by the police at the scene of the crash.

This Court essentially has adopted three different approaches in analyzing whether a defendant is entitled to counsel during a prompt on-the-scene corporeal identification. In People v. Dixon, 85 Mich.App. 271, 280-281, 271 N.W.2d 196 (1978), this Court held that when a police officer has more than a mere suspicion that the suspect is wanted for the crime, the officer cannot return the suspect to the scene of the crime, but must take the suspect to the police station and a have a lineup at which counsel is present. The "mere suspicion" rule announced in Dixon, although advocated by defendant in his brief, has not gained support as a blanket rule. Indeed, two judges signing the Dixon majority later disaffirmed the rule and followed People v. Turner, 120 Mich.App. 23, 328 N.W.2d 5 (1982). See People v. Fields, 125 Mich.App. 377, 382, 336 N.W.2d 478 (1983) (Holbrook, Jr., J., concurring); People v. Wilki, 132 Mich.App. 140, 146, 347 N.W.2d 735 (1984) (Maher, J., concurring).

In Turner, this Court held that police officers may conduct an on-the-scene identification without the presence of counsel any time promptly after the crime except where the police have very strong evidence that the person stopped is the culprit. Very strong evidence exists where the suspect has decreased any exculpatory motive, such as where the suspect has confessed or presented the police with highly distinctive evidence of the crime or has a highly distinctive personal appearance. Id., p. 36, 328 N.W.2d 5. However, this Court also held that where the police already have arrested validly the suspect for a separate offense, the police may subject the suspect to an on-the-scene identification without counsel unless they have more than a mere suspicion that the suspect was responsible for the crime to which the identification pertains. Id., p. 37, 328 N.W.2d 5.

The third approach was taken in People v. Coward, 11 Mich.App. 55, 315 N.W.2d 144 (1981). There, this Court recognized that a prompt on-the-scene identification within minutes of the crime is justified without counsel. Accord People v. Purofoy, 116 Mich.App. 471, 480, 323 N.W.2d 446 (1982). This Court specifically noted that there was nothing in the record to suggest that the police officers were not attempting, in good faith, to determine whether there was a reasonable likelihood that the suspect was connected with the crime or was merely an unfortunate victim of circumstances. Coward, supra, 111 Mich.App., pp. 63-64, 315 N.W.2d 144. Thus, the implication is that the identification procedure must be a prompt on-the-scene identification and reasonable police practice. See People v. Marks, 155 Mich.App. 203, 214, 399 N.W.2d 469 (1986).

We adopt the Turner rule. Even the prosecutor acknowledges that the approach outlined in Turner appears to be the most widely adopted by this Court. People v. Raybon, 125 Mich.App. 295, 307, 336 N.W.2d 782 (1983); Fields, supra, 125 Mich.App., p. 381, 336 N.W.2d 478; People v. McCuaig, 126 Mich.App. 754, 758, 338 N.W.2d 4 (1983); People v. St Cyr, 129 Mich.App. 471, 474, 341 N.W.2d 533 (1983); Wilki, supra, 132 Mich.App., p. 143, 347 N.W.2d 735; People v. Murray, 147 Mich.App. 227, 230, 383 N.W.2d 613 (1985), aff'd. on other grounds 428 Mich. 343, 408 N.W.2d 789 (1987). As this Court has stated, on-the-scene identifications are inherently...