People v. Piscunere

• Decision Date: 24 August 1970
• Docket Number: No. 1,Docket No. 5951,1
• Citation: People v. Piscunere, 181 N.W.2d 782, 26 Mich.App. 52 (Mich. App. 1970)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Louis PISCUNERE, Defendant-Appellant
• Court: Court of Appeal of Michigan

Page 782

181 N.W.2d 782

26 Mich.App. 52

PEOPLE of the State of Michigan, Plaintiff-Appellee, v.Louis PISCUNERE, Defendant-Appellant.

Docket No. 5951.

Court of Appeals of Michigan, Division No. 1.

Aug. 24, 1970.

Rehearing Denied Nov. 17, 1970.

Released for Publication Dec. 28, 1970.

Walter A. Kurz, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol.Gen., William L. Cahalan, Pros.Atty., Dominick R. Carnovale, Chief, Appellate Div., Angelo A. Pentolino, Asst. Pros.Atty., for plaintiff-appellee.

Before T. M. BURNS, P.J., and LEVIN and DAVIDSON^*, JJ.

DAVIDSON, Judge.

The Defendant was convicted by a jury of armed robbery.M.C.L.A. § 750.529(Stat.Ann.1970 Cum.Supp. § 28.797).He appeals to this court as a matter of right.

On August 28, 1967, between the hours of 1 and 2 p.m., a man entered the branch of the National Bank of Detroit in the city of Plymouth, approached one of the tellers, and handed her a note demanding money.The man raised a newspaper he had in one of his hands and exposed a gun.The teller handed the robber money which he stuffed into a paper bag; and, after he had left, she sounded the alarm.

In the course of the investigation of the robbery, 10 to 12 photographs from police files were shown to 3 bank employees, who identified the Defendant as the person who had robbed the bank.On the 30th day of August 1967, at a police lineup in the Detroit Police Department Headquarters building, the Defendant was again identified as the person who had committed the robbery.

At trial, when the subject of the Defendant's identification was raised, the court excused the jury and took testimony surrounding the use of the photographs and the lineup by which the Defendant had been identified in order to determine whether or not in-court identification of the Defendant would be permissible.The trial judge held that the in-court identification of the Defendant would be permitted and that the photographic and lineup identification procedures were proper.

The Defendant's first contention is that the photographic identification procedure was so unduly prejudicial as to fatally taint his conviction.In Simmons v. United States(1968), 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, the Defendants were charged with armed robbery and snapshots of the Defendants were shown to eyewitnesses while the robbers were at large.The Court scrutinized the identification procedure to determine whether or not, in light of the totality of the surrounding circumstances, the procedure was so unduly prejudicial as to fatally taint the conviction of Defendant Simmons.

On the basis of Simmons, we conclude that the photographic identification procedure used in this case was proper.First, there was a necessity to use photographs because the bank robber was still at large.Second, the witnesses had a good opportunity to observe the robber.Third, the identification was made the day after the crime, while the memories of the witnesses were still fresh.Fourth, enough photographs were shown to the witnesses; there is no indication in the record that the photographs singled out the Defendant.Fifth, each witness was alone when shown the photographs.Finally, the witnesses were not given any suggestive information or instructions before they made their identification of the Defendant.

The Defendant next attacks the lineup procedure.During the trial, the Defendant moved for an evidentiary or Walker-type hearing concerning the procedure used at the lineup conducted two days after the bank robbery.The police officer who conducted the lineup testified concerning the procedures used and defense counsel was allowed extensive cross-examination.However, the trial court did not allow the Defendant to take the stand during this evidentiary hearing.

In People v. Cope (1969), 18, Mich.App. 14, 170 N.W.2d 495, the Defendant assigned error to the trial court's refusal to permit him to testify at the pretrial hearing on the alleged invalidity of a search and seizure.This court affirmed the trial court's ruling.On appeal to our Supreme Court, the case was remanded to the trial court for a complete evidentiary hearing on the admissibility of the seized item.People v. Cope(1970), 383 Mich. 757, 173...