People v. Richards
| Decision Date | 11 July 1977 |
| Docket Number | Docket No. 27176 |
| Citation | 76 Mich.App. 695,256 N.W.2d 793 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael RICHARDS, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Smith, Magnusson & Chartrand by Douglas Chartrand, Pontiac, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., L. Brooks Patterson, Pros. Atty., Michael J. Modelski, Asst. Pros. Atty., for plaintiff-appellee.
Before WALSH, P. J., and KAUFMAN and ALLEN, JJ.
Defendant was charged with breaking and entering with intent to commit larceny. M.C.L.A. § 750.110; M.S.A. § 28.305. He was twice tried by jury. The first jury was unable to reach a verdict and was discharged. The second jury found the defendant guilty as charged. After conviction the court placed defendant on probation for a period of three years.
At issue in both trials was the identity of the perpetrator of the crime. Defendant contends that the use of a photo identification procedure by the police rather than a corporeal lineup violated defendants right to due process. We disagree.
In People v. Anderson, 389 Mich. 155, 186-187, 205 N.W.2d 461, 476 (1973), the Court enunciated the applicable rule:
The Anderson rule applies to cases in which the defendant is in custody on a charge or charges unrelated to the charge on which the photo identification procedure is used. People v. Jackson, 391 Mich. 323, 217 N.W.2d 22 (1974); People v. Anderson, 391 Mich. 419, 216 N.W.2d 780 (1974). It does not apply to pre-custody investigations. People v. Lee, 391 Mich. 618, 218 N.W.2d 655 (1974).
In the instant case the defendant was not in custody when the photographs were shown to the witnesses for purposes of identification. Defendant's constitutional rights were not infringed.
Defendant next contends that the failure of the trial court to give a requested instruction on eyewitness testimony was reversible error. The requested instruction included the following quotation from a report to the British Parliament made by the Committee of Inquiry into the Case of Adolph Beck: 1
"(E)vidence as to the identity based on personal impressions, however bona fide, is perhaps of all classes of evidence the least to be relied upon, and therefore, unless supported by other facts, an unsafe basis for the verdict of a jury."
Such is not the law in Michigan. Unsupported eyewitness testimony, if believed by the trier of fact, is sufficient to convict. People v. Newby, 66 Mich.App. 400, 239 N.W.2d 387 (1976). As to the balance of the requested instruction, it was included in substance in the charge given. There was no error. See, People v. Bradley, 62 Mich.App. 39, 233 N.W.2d 177 (1975).
The next assignment of error relates to the validity of the following condition included in the order of probation:
A panel of this Court has previously held that the Court has no power to require, as a condition of probation, the kind of waiver of constitutional protections which is found in this order, and that the probationer's consent to such a...
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