People v. Poe

• Decision Date: 29 November 1972
• Docket Number: No. 7,7
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ralph POE, Defendant-Appellant.
• Court: Michigan Supreme Court

Page 320

202 N.W.2d 320

388 Mich. 611

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ralph POE, Defendant-Appellant.

No. 7.

Supreme Court of Michigan.

Nov. 29, 1972.

William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief Appellate Department, Thomas R. Lewis, Asst. Pros. Atty., Detroit, for plaintiff-appellee.

Philip A. Gillis, Detroit, of counsel for State Appellate Defender Office, for defendant-appellant.

Before the Entire Bench (BLACK, J., not participating).

ADAMS, Justice.

Statement of Facts

On the evening of October 13, 1966, there was an armed robbery of a Wrigley's Supermarket in Detroit. Pringle Johnson, the assistant manager, was forced at gunpoint to give the man about $350. A cashier, Fannie Evans, was under the impression the robber wanted to cash a check and spoke to him. Another employee, Douglas Ballard, was about to go on a break when the robber told him he had better not leave. Gary Harbin, an employee, and Mitchell Matthews, a customer, observed the robber from a distance.

After the robber left, Johnson summoned the police. Officer Jones, one of the first officers to respond to the call, asked for a description of the robber. The relied on Johnson for the bulk of this identification but his report was also based on the views of the other witnesses. According to Jones' report and testimony, the robber was described as 'a Negro Male, thirty to thirty-five, five foot five, slim build, with a heavy beard and a medium mustache; the man was wearing a brown squashed down hat, a brown Italian knit sweater and green pants. He (Johnson) stated that this man also had a limp in his left leg and that his mouth was distorted when he talks. A teletype based on Jones' write-up altered 5 5 to 5 8 , 'heavy beard' to 'needed shave,' and 'limp in left leg' to 'limp in right leg.' See Exhibit A attached.

Several files of mug shots were shown to the witnesses that evening by police officers other than Jones. Matthews and Harbin picked out a picture of Poe. Johnson and Evans picked out a picture of Poe and another man, 'Two-zero,' but indicated that Poe came the closest. Ballard picked out two pictures. The next morning, pictures were again shown to Johnson, Evans and Matthews. The picture of Poe was again chosen as being the closest to the robber.

The police did not want to request a warrant based solely on the picture identification. As one officer explained, the other man, 'Two-zero,' showed a background of 15 armed robberies and Poe had not been known to be involved in any armed robberies. Every witness, except Ballard, was asked to be present at a line-up. The men participating in the line-ups were of various ages. While Poe was in each line-up, 'Two-zero' did not participate in any of them. According to the notations on the showup sheets, Johnson and Evans 'positively' identified Poe. Harbin stated that although Poe looked like the robber, he could not testify to that in court. Matthews identified another man.

Poe was arrested and charged with armed robbery. A jury trial was held in Recorder's Court. Poe was represented by appointed counsel, Philip A. Gillis. Since Poe maintained that he was innocent, the whole trial rested on identification of him as the robber. Johnson testified the robber had a heavy mustache, was 5 8 or 5 9 tall, wore a suede-type jacket, and limped only once with his right leg. Other witnesses also disputed the description as testified to by Officer Jones. Poe was 32 years of age at the time of the trial and 5 9 tall. He showed no limp and, when testifying, showed no distortion of his mouth.

The jury found Poe guilty of robbery armed. Upon appeal to the Court of Appeals, that court first remanded the case to Recorder's Court 'for post-conviction proceedings.' On the hearing on a motion for retrial, the trial court considered only the issue of whether the court-appointed lawyer, being inadequately paid, had inadequately represented his client. The trial court denied the motion for retrial on the ground that Mr. Gillis had performed an admirable job.

Appeal was again taken to the Court of Appeals. The trial court's decision was affirmed. (27 Mich.App. 422, 183 N.W.2d 628). This Court granted leave, limited to the issue of the admissibility of a police officer's testimony pertaining to identification of defendant made by witnesses at showups and handwritten notations pertaining to line-up identification. (384 Mich. 799). The order was later amended to include the issue of whether Officer Jones should have been recalled for impeachment purposes with respect to the testimony of an identifying Res gestae witness. (384 Mich. 800).

I. Identification

As at trial, on this appeal the whole problem in this case is one of identification. Four interrelated issues are involved: (1) discrepancies in the testimony of witnesses; (2) pretrial identification procedure; (3) the admissibility of police notes entitled 'Record of Showup' and their submission to the jury during its deliberation; and (4) the court's refusal to recall the investigating officer who obtained the descriptions at the scene.

(1) Discrepancies in Testimony

Officer Jones' report describing the robber, the testimony of the store witnesses, and the alterations in the police bulletin by interlineations to make it conform with the description given by the witnesses, and other discrepancies, would ordinarily be proper matters for jury resolution. The officer's original notes from which he made his police report were never used by him to refresh his memory or admitted as past recollection recorded. We shall have more to say of them under (4).

(2) Pretrial Identification

The witnesses were shown a number of police mug shots the night of the holdup and again the next morning. Defendant's photo was in both groups. This would be within standard and proper identification procedures. However, two of the witnesses recalled having been shown photos on the day of the showup and Fannie Evans stated that when she went to the police station for the showup, she was permitted to see defendant before the showup. 'I really didn't look at the others (in the showup) because I saw him (defendant) before I even got there and I recognized him.' When Gary Harbin viewed defendant at a showup, men used for it, besides the 32-year old defendant, were two teenagers and a 58-year old man.

(3) Admissibility of Police Notes

The defense elicited testimony by the police to show that although Matthews and Harbin swore at trial that Poe was the robber, they did not make such positive identifications during the line-ups. The line-up sheets with the remarks made by these two witnesses recorded thereon were submitted into evidence to make this point. The use of these documents to refresh the witnesses' memory and to test their reliability was proper. See, generally, 2 Gillespie, Michigan Criminal Law & Procedure (2d ed.), § 598, p. 775.

The defense objected, however, when the prosecution undertook to show by police testimony that both Johnson and Evans had made a 'positive identification' of Poe. The sheets describing those two line-ups were also admitted into evidence over defense counsel objection. According to the notations on these line-up sheets, Mrs. Evans, when identifying Poe, said: 'That's him with the trench coat on.' Mr. Johnson was quoted as saying: 'That's him, that's him.'

The defense contended that, although the line-up sheets could be admitted to impeach the testimony of Matthews and Harbin, the sheets involving the line-ups in which Evans and Johnson were present could not be admitted since they did not fall into any exception to the hearsay rule. The quotations only served to show prior Consistent statements. The two witnesses were never impeached on their line-up indentifications of Poe.

The jury examined these sheets during the trial and again during their deliberations.

The courts below and the prosecutor rely upon the holding in People v. Londe, 230 Mich. 484, 487, 203 N.W. 93, 94 (1925):

'The third question presented by the record relates to the ruling of the court in permitting witnesses Mrs. Evans and John Kay to testify that they identified the defendant in the show-up room at police headquarters, And in permitting John Donovan, a police officer, to testify as to what took place at the time of the identification. It was proper for the witnesses who had seen the men at the time of the robbery to testify that they later identified the defendant as one of them, And it was equally proper for the officer to testify under what circumstances the identification was made. That is as far as the witnesses were allowed to go in giving their testimony.' (Emphasis added.)

Londe restricts the police officer's testimony to 'what took place' and under 'what circumstances the identification was made' and not, as here, the nature or quality of the identification.

In People v. Mead, 50 Mich. 228, 15 N.W. 95 (1883), a woman who was sleeping in the 'burgled' house testified that she saw the burglar plainly enough to recognize him afterwards and that two days later, while in her husband's company, saw defendant and told her husband she believed defendant to be the burglar. The husband was then put on the stand and related his wife's observances and recognition. Justice Cooley, speaking for the Court, observed (p. 230, 15 N.W. p. 95):

'The question was then put in this form: Did she recognize anybody? This was objected to, but allowed, and the witness answered, she did. The further question was then asked: Whom did she recognize? And the answer given was: This defendant; she recognized him as being the man that was in her bed-room on the first of November, the time of the burglary. I told her to be sure, and she says, I am sure.

'It will be observed that in this the witness went altogether beyond the question, and beyond any permission that could be implied from the ruling of the judge. The question was simple: Whom did she...