People v. Powell

• Court: Court of Appeal of Michigan
• Writing for the Court: RILEY
• Citation: People v. Powell, 294 N.W.2d 262, 97 Mich.App. 287 (Mich. App. 1980)
• Decision Date: 05 May 1980
• Docket Number: Docket No. 77-1702
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Elijah POWELL, Defendant-Appellant. 97 Mich.App. 287, 294 N.W.2d 262

Page 262

294 N.W.2d 262

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Elijah POWELL, Defendant-Appellant.

Docket No. 77-1702.

97 Mich.App. 287, 294 N.W.2d 262

Court of Appeals of Michigan.

May 5, 1980.

Released for Publication July 11, 1980.

[97 MICHAPP 288] Thomas A. Neenan, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., E. Reilly Wilson, App. Chief Pros. Atty., Robert J. Sheiko, Asst. Pros. Atty., for plaintiff-appellee.

[97 MICHAPP 289] Before CYNAR, P. J., and HOLBROOK and RILEY, JJ.

RILEY, Judge.

(After Remand)

Defendant Elijah Powell was convicted by a jury on February 17, 1977, of second-degree murder, M.C.L. § 750.317; M.S.A. § 28.549. The trial involved the killing of one Christal Davis, whose burned torso, absent head and limbs, was discovered in a Washtenaw County park on October 3, 1975. Defendant was sentenced to a term of 80 to 120 years imprisonment, appeals as of right, and questions several evidentiary rulings by the court below.

Defendant alleges that the court erroneously permitted a witness to identify the defendant in court, where the only prior out-of-court identification was at a photographic showup conducted while the defendant was in custody.

The record reveals that on the morning of October 1, 1975, Thomas Lipkea, while driving near the park where the homicide victim was discovered, noticed a thin column of smoke rising from a wooded area. Shortly thereafter, he observed a 1972 Caprice pull out of that same area and eventually come to a stop behind his auto as both waited for the change of a traffic signal. Through his rearview mirror, Lipkea viewed its occupant for approximately ten seconds. Over objection at trial, he was allowed to identify the defendant as the driver of that vehicle.

The witness further testified that about two weeks after the incident a photo showup was conducted at police headquarters, at which time he identified the defendant from a group of six photographs. The record shows that defendant was in custody at the time.

In People v. Anderson, 389 Mich. 155, 186-187, 205 N.W.2d 461 (1973), the Supreme Court held [97 MICHAPP 290] that, subject to certain exceptions, identification by photograph should not be used where the accused is in custody. Those exceptions apply when:

(1) it is not possible to arrange a proper lineup,

(2) there is an insufficient number of persons available with defendant's physical characteristics,

(3) the nature of the case requires immediate identification,

(4) the witnesses are at a place far distant from the location of the in-custody accused, and

(5) the subject refuses to participate in a lineup and by his actions would seek to destroy the value of the identification.

Identification procedures are to be judged on the totality of the circumstances. People v. Richmond, 84 Mich.App. 178, 181, 269 N.W.2d 521 (1978). Here it was the mutual decision of the police and the defense that the defendant's middle age and distinctive physical characteristics (five feet nine inches, 269 pounds) would prevent any fair lineup. There simply were not sufficient persons with similar characteristics available for lineup participation at the Wayne County jail. Thus, under Anderson, supra, it was not possible to arrange a proper lineup. We believe that the photographic identification thereafter utilized was an acceptable and reasonable alternative.

Defendant also contends that the photographic identification itself was impermissibly suggestive since only three of the six pictures used in the showup accurately depicted a man with the description originally given to police.

It has never been held that physical dissimilarities between the suspect and the other participants in a showup constitute impermissible suggestiveness per se. Richmond, supra. Even under normal circumstances, it would be unusual if the [97 MICHAPP 291] police had six persons with like characteristics locked up in the same jail. People v. Lloyd, 5 Mich.App. 717, 724, 147 N.W.2d 740 (1967). When the police are confronted with a person of unique characteristics such as the defendant, finding sufficient comparable persons from the jail or from available police officers becomes extremely unlikely. Under these circumstances, one must judge any degree of suggestibility by the totality of the circumstances. See Richmond, supra, 84 Mich.App. at 181, 269 N.W.2d 521.

We believe that given the set of instant facts, the photographic identification was not impermissibly suggestive. Defendant's counsel was present during the officer's perusal of mug shots from which the showup photographs were selected. The officer testified that some 100 photographs were considered before the six were chosen. Defendant's counsel did not object to the ultimate shots selected. If there were sharply distinguishing physical characteristics that the attorney did not notice which might have impaired the validity of the witness's identification, this lack of trustworthiness could have been argued before the jury at trial. See People v. Herrera, 42 Mich.App. 617, 202 N.W.2d 515 (1972).

" * * * the purpose of a lineup is identification. If the defendant is the tallest man in the lineup, and if he believes that this impairs the validity of the identification, he should see that the jury is apprised of that fact. This is a question of the weight to be given the lineup identification, not its admissibility. It presents no basis for a new trial." Lloyd, supra, 5 Mich.App. at 724-725, 147 N.W.2d at 744.

Defendant next alleges that the court erred when it permitted a radiologist to identify the discovered torso as that of Christal Davis through a comparison of chest x-rays. At trial, Dr. William [97 MICHAPP 292] Martel compared an x-ray of the burned torso and one taken of Christal Davis during her stay in a hospital approximately four and one-half years earlier. He stated that in the judgment both x-rays were taken of the same individual. Defense counsel objected, asserting that no foundation had been laid to show that this was a scientifically accepted and reliable method of identification. The trial judge ruled that Dr. Martel was qualified to give an opinion concerning the identification of the torso. We affirm that decision.

There is no question that Dr. Martel was sufficiently qualified as an expert witness, having testified that he was a professor of medicine at the University of Michigan Medical School and a specialist in the area of radiology for about 20 years. He stated that in his career he had...