People v. Phelps

• Decision Date: 06 January 1975
• Docket Number: No. 2,Docket No. 15413,2
• Citation: 57 Mich.App. 300,225 N.W.2d 738
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Albert PHELPS, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 738

225 N.W.2d 738

57 Mich.App. 300

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Albert PHELPS, Defendant-Appellant.

Docket No. 15413.

Court of Appeals of Michigan, Division No. 2.

Jan. 6, 1975.

Rehearing Denied Feb. 19, 1975.

Released for Publication Feb. 21, 1975.

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

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

Before QUINN, P.J., and BASHARA and VanVALKENBURG,* JJ.

BASHARA, Judge.

Defendant was convicted of armed robbery, M.C.L.A. § 750.529; M.S.A. § 28.797 and appeals.

Mr. John Starwas, on March 2, 1972, was robbed at gun point while working in his party store. Some two weeks after the robbery, Officer Wolak received an informant's tip that defendant had committed the robbery. Acting on this information, Officer Wolak showed Mr. Starwas and Eddie McClure, an employee present at the the defendant as the robber from the photo Two of the photographs were pictures of the efendant and a third picture was of another individual. Mr. Starwas identified the defendant as the robbery from the photo display. However, Mr. McClure was not able to positively identify defendant. Shortly after the photo identification, a lineup was conducted and Mr. Starwas identified the defendant as the robber.

At defense counsel's request, a hearing on the admissibility of the identification procedures was held prior to trial. At this hearing, Mr. Starwas testified his identification was from memory and not based on the photo display. The court ruled that the lineup identification and an in-court identification would be admissible, however it would not allow testimony concerning the photo identification. At this juncture defense counsel, recognizing that Mr. Starwas would testify that his identification was based on his memory, waived all objections to the identification procedure. Defense counsel did not object to the introduction of any identification testimony at trial, and in her closing argument to the jury emphasized the suggestiveness of the whole procedure.

Prior to the beginning of trial, the court granted the prosecutor's motion to bar defendant's alibi witnesses because the notice of alibi statute, M.C.L.A. § 768.20; M.S.A. § 28.1043 had not been complied with. ¹ During the cross-examination of defendant, the prosecution made reference to the potential testimony of defendant's alibi witnesses. The prosecutor then waived his objections to the notice requirement. Defendant subsequently produced several alibi witnesses.

Defendant's first allegation on appeal is that the two-man photo display was so inherently suggestive that the trial court erred in failing to exclude Mr. Starwas' in-court identification of defendant. Defendant does not, per se, challenge the lineup, except to argue that it was tainted by the improper photo procedure.

While the photo identification procedure used in this case may have been suggestive, an in-court identification is admissible if the complaining witness is able to demonstrate an independent recollection. People v. Lee, 391 Mich. 618, 218 N.W.2d 655 (1974); People v. Fossey, 41 Mich.App. 174, 199 N.W.2d 849 (1972). There is ample evidence in the record to support a finding of an independent basis of identification. Mr. Starwas testified that he was able to identify defendant from the robbery and his identification was not based on the photo or lineup recognition. Mr. Starwas stated that although to his recollection, he had never seen the defendant before, he was only several feet from the robber at all times and that he stared directly at the robber's face, so that he would be able to later identify him. We are of the opinion that the trial court did not err in allowing the identification testimony.

Defendant, in conjunction with the first issue, argues that he was entitled to be represented by counsel at the pre-custody identification and cites People v. Jackson, 391 Mich. 323, 217 N.W.2d 22 (1974); People v. Anderson, 389 Mich. 155, 205 N.W.2d 461 (1973). The Supreme Court in People v. Lee, Supra, 391 Mich. p. 625, 218 N.W.2d 655, p. 658, has recently written to the question of pre-custody identifications. The Court in Lee, supra, stated:

'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' investigation. The cases to which the defendant refers are in-custody not pre-custody cases.

'We decline to extend the reasoning of Franklin Anderson (supra) 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 defendant 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.'

We conclude that there is no right to counsel at a pre-custody photo display.

Defendant next contends that the trial court's failure to Sua sponte conduct the hearing on the reliability of the police informant, or to require the production of that informant, denied defendant the right to confrontation. The many cases cited by defendant are concerned with the corroboration of informant hearsay testimony used to establish probable cause for a warrant. This is not the case in the instant appeal. Michigan does not require the prosecution to disclose the name of an informant unless that informant is a material witness. People v. Asta, 337 Mich. 590, 60 N.W.2d 472 (1953); People v. Wenrich, 31 Mich.App. 644, 188 N.W.2d 102 (1971). The informer in this case was not a material witness. Since the prosecution is not required to divulge the name of an informant, there is certainly no requirement for a trial court to Sua sponte order the production of that informant.

Defendant next argues that the prosecutor, by manipulating the notice of alibi statute, i.e. the waiving of the 4-day notice requirement, only after defendant had taken the stand, violated the Supreme Court's rule in Wardius v. Oregon, 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973), and defendant's right against self-incrimination.

We find defendant's argument is not properly before this Court. Defense counsel failed to argue at trial that the Michigan alibi statute was unconstitutional under Wardius, supra. Due to the fact that no request for reciprocal discovery was made in the trial court and since no objections were made to the proceeding in the trial court on the question of the constitutionality of the statute, we find that defendant has not properly preserved the issue for appellate review. People v. Watkins, 54 Mich.App. 576, 221 N.W.2d...