People v. Morton

• Decision Date: 08 August 1977
• Docket Number: Docket No. 27539
• Citation: 77 Mich.App. 240,258 N.W.2d 193
• Parties: PEOPLE of The State of Michigan, Plaintiff-Appellee, v. John MORTON, Defendant-Appellant. 77 Mich.App. 240, 258 N.W.2d 193
• Court: Court of Appeal of Michigan — District of US

Page 193

258 N.W.2d 193

PEOPLE of The State of Michigan, Plaintiff-Appellee, v. John MORTON, Defendant-Appellant.

Docket No. 27539.

77 Mich.App. 240, 258 N.W.2d 193

Court of Appeals of Michigan.

Aug. 8, 1977.

Released for Publication Oct. 17, 1977.

[77 MICHAPP 241] Robert E. Slameka, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Riley, Appellate Chief, Andrea L. W. Solak, Asst. Pros. Atty., for plaintiff-appellee.

Before V. J. BRENNAN, P. J., and GILLIS and RILEY, JJ.

V. J. BRENNAN, Presiding Judge.

On November 6, 1975, defendant John William Morton and codefendant David Terrence Smith were convicted by jury of armed robbery, contrary to M.C.L.A. § 750.529; M.S.A. § 28.797. On November 25, 1975, defendant was sentenced to a prison term of five to ten years.

Complaining witness Phyllis Jones testified that at approximately 11 p. m. on June 21, 1975, she stopped at a gas station in the vicinity of Oakman and Linwood in the City of Detroit to ask for directions. At this time, defendant and codefendant Smith were present in the gas station. The two [77 MICHAPP 242] men approached her and asked for a ride down Linwood.

Mrs. Jones allowed the two men to enter her car and proceeded to drive one-half block from the gas station. At that point, defendant Smith told her to turn down Oakman Court and stop the car. Smith took Mrs. Jones's purse while the defendant, who was in the backseat, displayed a gun. Defendant Morton also stated to Mrs. Jones, "Do what he says, because he's crazy". Defendants then forced Mrs. Jones from her car and fled from the scene with the vehicle. Mrs. Jones hailed a passing car and was given a ride back to the gas station where she telephoned the police.

Mrs. Jones positively identified the defendant both at trial and prior to trial in a police lineup.

Shortly after the crime was committed, two police officers received a radio report concerning the robbery. They observed an automobile matching the description of the Jones' automobile. The car was occupied by two males. The officers pulled into a gas station behind the vehicle. However, the suspect automobile sped off at a high rate of speed. Some moments later, the officers observed the suspect vehicle parked in the middle of a street with both doors open. The officers searched the area and apprehended defendant Morton hiding in a nearby garage. One of the police officers, John Danclovic, identified defendant Morton as the driver of the suspect vehicle on the basis of observing him at the service station prior to the chase.

The defendant did not put on a case. Defense counsel simply argued that defendant's identity had not been established beyond a reasonable doubt.

On appeal, defendant brings four allegations of error. We will discuss only two at any length.

[77 MICHAPP 243] Defendant first contends that the trial court committed reversible error by limiting defense counsel's inquiry, during a pretrial hearing, regarding the suggestiveness of the lineup.

Immediately preceding trial, defendant's counsel made a motion for a Wade ¹ hearing to challenge the pretrial lineup procedure. The lineup occurred within a day of the crime. Apparently, defense counsel did not make an earlier motion to challenge the lineup procedure due to his late assignment as defense counsel.

Initially, the court denied defense counsel's motion for a hearing on the lineup procedure. However, the court relented when the prosecutor stated he had no objection to conducting a hearing. Defense counsel was then given a copy of the lineup sheet; and the complaining witness, Phyllis Jones, was called to the stand. Defense counsel proceeded to ask the complaining witness for the descriptions of the assailants that she had given to the police. The trial judge stopped the questioning and informed defense counsel that he could challenge the suggestiveness of the lineup but could not examine the witness for discovery purposes. Counsel continued, asking the witness when the lineup was conducted and how many people were involved. Counsel then proceeded to ask the witness again for the description she had given the police. The prosecutor objected. The trial court perceived that defense counsel was still using the hearing as a means of discovery and pressed defense counsel for specific allegations of suggestiveness in the lineup proceedings.

After a short recess, defense counsel indicated the basis for the hearing rested upon the allegation[77 MICHAPP 244] that the defendant was wearing the same clothes during the lineup that he wore during the commission of the alleged crime. The judge then denied the motion to continue the hearing.

In the instant case, counsel was present during the lineup. When counsel is present at a lineup, the burden is on the defendant to prove the lineup was impermissibly suggestive. People v. Rivera, 61 Mich.App. 427, 431, 232 N.W.2d 727 (1975), People v. Blassingame, 59 Mich.App. 327, 229 N.W.2d 438 (1975), People v. Curtis, 34 Mich.App. 616, 192 N.W.2d 10 (1971), People v. Young, 21 Mich.App. 684, 176 N.W.2d 420 (1970). In measuring this burden, Rivera indicates a court must consider the totality of the circumstances and determine whether the identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. People v. Rivera, supra, 61 Mich.App. at 429-430, n. 2, 232 N.W.2d 727.

The precise problem in the instant case is whether or not the trial judge improperly foreclosed the defendant from making a threshold showing that the lineup was impermissibly suggestive due to the fact that defendant wore the same clothing during the lineup as when apprehended.

We do not believe wearing the same clothing will always render the lineup impermissibly suggestive. ² Therefore, we do not believe the court improperly foreclosed the hearing. Our Court has reasoned in support of this position. People v. Jones, 44 Mich.App. 633, 205 N.W.2d 611 (1973). The Court there stated:

"Even assuming defendant was the only lineup participant[77 MICHAPP 245] wearing a green T-shirt, we are not convinced an impermissible suggestion arose. Several courts have concluded that wearing of the same clothing at arrest and subsequent lineup will not vitiate the lineup, even where the clothing serves to draw attention away from other lineup participants. Hernandez v. State, 7 Md.App. 355, 255 A.2d 449 (1969); Presley v. State, 224 Md. 550, 168 A.2d 510 (1961), cert. den., 368 U.S. 957, 82 S.Ct. 399, 7 L.Ed.2d 389 (1961). See also 39 A.L.R.3d 487, § 9, p. 500.

"In any event, the identification witness's trial testimony renders the objection insignificant. She stated her identification was hinged on a more crucial factor, defendant's face. Thus, the case is easily distinguished from People v. Hutton, 21 Mich.App. 312, 331, 175 N.W.2d 860 (1970), where the defendant's distinctive clothing was the pivotal identifying factor." People v. Jones, supra, at 637-638, 205 N.W.2d at 614.

As in Jones, complainant testified that she identified defendant by facial features and not his clothing. Taking all circumstances into account, then, we do not believe defendant has made the strong showing of unfairness required of him in order to obtain reversal here.

Defendant alleges, secondly, that the trial court improperly refused to give an instruction to the jury which would have permitted them to find each defendant guilty of a different lesser included offense of armed robbery.

The defense in this case was based solely upon an argument of insufficient identification. The direct evidence against the defendant came from the complaining witness. Her testimony indicated that the defendant and...