People v. Mitchell

• Decision Date: 27 May 1975
• Docket Number: No. 2,Docket No. 18976,2
• Citation: 232 N.W.2d 340,61 Mich.App. 153
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kenneth J. MITCHELL, Jr., Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 340

232 N.W.2d 340

61 Mich.App. 153

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kenneth J. MITCHELL, Jr., Defendant-Appellant.

Docket No. 18976.

Court of Appeals of Michigan, Division No. 2.

May 27, 1975.

Released for Publication Sept. 4, 1975.

James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William F. Delhey, Pros. Atty., for plaintiff-appellee.

Before T. M. BURNS, P.J., and D. E. HOLBROOK and KELLY, JJ.

D. E. HOLBROOK, Judge.

Defendant Kenneth J. Mitchell, Jr., after a three-day trial in June 1973, was found guilty by a jury of the offense of robbery armed, contrary to M.C.L.A. § 750.529; M.S.A. § 28.797. He was sentenced to a prison term of 7 to 20 years, and now brings this appeal as of right.

At approximately 10:45 p.m., January 25, 1973, a lone gunman robbed the Beehive Party Store in Pittsfield Township, taking $540.81 in cash and some cigarettes. The victim, David Khoury, described the robber as a Negro, approximately 6 feet in height, wearing a black hat and a dark blue scarf. Mr. Khoury testified that the gunman used the hat and scarf to cover part of his face. The scarf came up to approximately the middle of his nose and the cap came down to about the middle of his forehead.

Daniel Cook, a Washtenaw County Sheriff's Department detective, arrived at the Beehive Party Store shortly after the robbery took place. Detective Cook questioned Mr. Khoury as to what places the defendant had touched during the robbery, and Mr. Khoury advised the detective that the robber had lifted a tray out of a cash register and had also touched a carton of cigarettes sitting on the counter. Detective Cook removed the carton of Kool cigarettes and the cash register tray from the store and turned these items over to the Plymouth Crime Lab in order to have the items checked for fingerprints. Detective Cook did not endeavor to obtain fingerprints from any other area of the store.

One week after the robbery, on February 1, 1973, trooper Jerry Difler matched prints of defendant's middle finger with a print taken from the cardboard cigarette carton found at the scene of the crime. Trooper Difler gave this information to detective Cook on the same day. After receiving this information, detective Cook assembled a display of nine photographs, including a photograph of defendant, and presented the photographs to David Khoury, the victim of the robbery. After looking at the nine photographs, Mr. Khoury picked out the photograph of defendant, and indicated that it was the photograph of the man who robbed him. Later on the same day, February 1, 1973, defendant Mitchell was arrested and charged with the armed robbery of the Beehive Party Store.

During the preliminary examination held on February 7, 1973, Mr. Khoury selected defendant's photograph as the one which he had selected at the identification proceeding held six days earlier. This identical selection process was repeated in court chambers on June 10, 1973, the day before the commencement of defendant's trial, and again during trial on June 11, 1973. Counsel for defendant was not present at the first photographic identification proceeding held on February 1, 1973, but the record indicates that defendant was represented by counsel at all subsequent photographic identification proceedings.

David Khoury also made an in-court identification of defendant, but indicated that he could not be positive that defendant was the individual who robbed him.

Defendant raises several issues, which we consider in order.

I

Was defendant entitled to the presence of counsel at the pre-custody photographic identification procedure?

As indicated in the statement of facts, defendant was not represented by counsel at the original photographic identification proceeding which was held on February 1, 1973. Defendant had not yet been arrested when this photographic show-up took place his arrest was made later on that same day. However, defendant vigorously contends that the investigation of the crime had focused on defendant to the point where there was definitely probable cause for his arrest Before the photographic show-up was held, and therefore, because he Should have been in custody, he should be regarded as having been in custody for the purpose of properly evaluating this issue on appeal.

As both defendant and the people point out in their briefs, the Michigan Supreme Court has given comprehensive consideration to the issue of photographic identification procedures in two rather recent cases: People v. Anderson, 389 Mich. 155, 205 N.W.2d 461 (1973), and People v. Lee, 391 Mich. 618, 218 N.W.2d 655 (1974). The Supreme Court in Anderson set forth the following two rules: (1) subject to certain exceptions, identification by photographs should not be used where the accused is in custody, and (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. In Lee, the Supreme Court at pp. 625--626, 218 N.W.2d at pp. 658--659, turned its attention to the precustody photographic line up; and the pertinent portion thereof reads as follows:

'The Franklin Anderson (People v. Anderson, 389 Mich. 155, 186--187, 205 N.W.2d 461, 476 (1973)) 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. (Emphasis in original.)

'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 defendants 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 identification 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.W.2d 461, 491--494 (1973); 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, 956--957, 468 P.2d 1000, 1001--1002 (1970); and People v. Eubank, 46 Ill.2d 383, 384--388, 263 N.E.2d 869, 871--873 (1970). 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:

"(C)onvictions 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.)'

In the case at bar, defendant claims that the police clearly had probable cause to arrest him once his fingerprints were matched with those found on a carton of cigarettes left at the scene of the crime. Defendant further contends that because he was available for a properly conducted lineup, and because he could easily have been arrested prior to the photographic show-up on February 1, 1973, rather than almost immediately thereafter, he should have been entitled to the presence of counsel even though he was not actually in custody at the time the photographic show-up was held.

We disagree with defendant's contention. The only evidence that the police had at the time of the original photographic show-up that defendant might have committed the robbery was the matching set of fingerprints. Fingerprints on the cigarette carton could just as easily have belonged to a legitimate customer in the store as to the defendant. There did not exist sufficient probable cause for the arrest of defendant prior to the photographic identification procedure held on February 1, 1973, and therefore, under the authority of Anderson and Lee supra, defendant was not entitled to the presence of counsel at the original precustody photographic show-up.

II

Is there any evidence to indicate that the pre-custody photographic identification procedure was unfairly suggestive?

Defendant alleges error in the photographic identification procedure by claiming that the show-up held on February 1, 1973, was unfairly suggestive. Defendant bases his claim primarily on the fact that David Khoury, the victim of the crime, was unable to be completely positive about his identification of defendant at both the preliminary examination and the trial...