People v. Nugent

• Decision Date: 10 December 1969
• Docket Number: No. 2,Docket No. 6036,2
• Citation: 21 Mich.App. 58,174 N.W.2d 623
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard Elwood NUGENT, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 623

174 N.W.2d 623

21 Mich.App. 58

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard Elwood NUGENT, Defendant-Appellant.

Docket No. 6036.

Court of Appeals of Michigan, Division No. 2.

Dec. 10, 1969.

Released for Publication March 11, 1970.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Robert F. Leonard, Pros. Atty., Donald A. Kuebler, Roger W. Kittendorf, Asst. Pros. Attys., Genesee County, Flint, for plaintiff-appellee.

Howard R. Grossman, Flint, for defendant-appellant.

Before J. H. GILLIS, P.J., and McGREGOR and V. J. BRENNAN, JJ.

V. J. BRENNAN, Judge.

Richard Elwood Nugent was convicted by a jury of forcible rape* and sentenced to a prison term of 12 1/2 to 40 years. On appeal the only issue is whether the trial court erred by ruling that the rape victim was able to identify the defendant at the trial independently of her observation of the defendant during a lineup conducted without the benefit of counsel and therefore illegally under United States v. Wade (1967), 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 and Gilbert v. California (1967), 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178.

Around noon of August 14, 1967, the complainant was returning with her two-year-old daughter from the swimming pool to her apartment when she was forced into her apartment at knife-point and raped. The complainant twice observed her assailant's features, once as she entered the building and saw him standing in the lobby, and again when he temporarily removed a bedspread he had placed over her head. According to the description she gave to the Genesee county sheriff's department, her assailant was a white man, about five feet, nine inches tall and weighing 150 pounds, with long dark hair, and was wearing a rust-colored shirt, blue jeans, and loafer-style tennis shoes spotted with grease. He carried a chrome and silver-colored knife. In a brief conversation held after intercourse, the man told his victim that he was 26-years-old and married. The complainant gave the investigating officers a ball-point pen dropped by her assailant during the scuffle.

On the following day, the sheriff's department arrested a man--the defendant here--substantially meeting the above description, including the clothing, who was carrying a chrome and silver-colored knife. It was soon learned that the ball-point pen belonged to the defendant, that the defendant was employed on a construction site near the complainant's apartment house, and that a fellow-employee had seen the defendant enter the apartment house around noon of the day in question. Without being advised of his right to the presence of an attorney, the defendant was placed in a lineup with four other men between the ages of 25 and 40. Of the men wearing work clothes, neither was of the same age or physique as the defendant; and those of the same age and physique, neither was wearing work clothes. The defendant was identified by the complainant as her assailant, and, after a preliminary examination, was bound over for trial.

Prior to trial, the court suppressed any and all evidence dealing with the lineup identification and barred the complainant from identifying the defendant in the absence of a hearing establishing her ability to do so independently of the lineup. No hearing was requested. A second jury was selected when the trial ended in a hung jury, but this time the prosecution moved that an evidentiary hearing be held. After hearing the testimony of the complainant, the court ruled that the prosecution had met its burden under Wade and Gilbert, supra, and permitted the complainant to point the defendant out at the second trial.

The claim by the defense that the incourt identification was without a source independent of the lineup is based on two allegations:

1) Any impressions the complainant might have gained of her assailant's face merged with the impressions of the defendant's face gained during the lineup, the preliminary examination, and the two-day trial, and therefore it was impossible for her to discern the former impressions from the latter, her testimony to the contrary notwithstanding; and

2) The complainant identified the defendant at the lineup not by his face, but by his clothing, which was like that worn by her assailant and unlike that worn by any other man in the lineup of the same age and physique.

In support of the second allegation, the defense quotes the following from the transcript of the preliminary examination:

'Q. This one man's clothes were quite a bit different then (sic) everyone else's clothes?

'A. Yes, sir.

'Q. The way you recognized him, was it by the clothes?

'A. Uh-huh.'

In Wade, the United States Supreme Court noted that whether an in-court identification can be said to be based on observations independent of the illegal lineup depends on various factors, among them:

'the prior opportunity to observe the alleged criminal act, the existence of any discrepancy between any pre-lineup description and the defendant's actual description, any identification prior to lineup of another person, the identification by picture of the defendant prior to the lineup, failure to identify the defendant on a prior occasion, and the lapse of time between the alleged act and the lineup identification.' 388 U.S. 218, 241, 87 S.Ct. 1926, 1940, 18 L.Ed.2d 1149, 1165.

The Court also noted that it is 'relevant to consider those facts which, despite the absence of counsel, are disclosed concerning the conduct of the lineup.' At the hearing in the present case, the complainant related the two opportunities she had for seeing her assailant's face, repeated the description she had given to the sheriff's department, and told the court...