People v. Richmond

• Decision Date: 19 June 1978
• Docket Number: Docket No. 77-590
• Citation: People v. Richmond, 269 N.W.2d 521, 84 Mich.App. 178 (Mich. App. 1978)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Dorian Michael RICHMOND, Defendant-Appellant. 84 Mich.App. 178, 269 N.W.2d 521
• Court: Court of Appeal of Michigan

Page 521

269 N.W.2d 521

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Dorian Michael RICHMOND, Defendant-Appellant.

Docket No. 77-590.

84 Mich.App. 178, 269 N.W.2d 521

Court of Appeals of Michigan.

June 19, 1978.

Rehearing Denied July 24, 1978.

Released for Publication Sept. 18, 1978.

[84 MICHAPP 179] Dorian M. Richmond in pro per.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Nels Olson, Asst. Pros. Atty., for plaintiff-appellee.

[84 MICHAPP 180] Before R. B. BURNS, P. J., and BRONSON and WALSH, JJ.

BRONSON, Judge.

Defendant was convicted by a jury, on December 9, 1976, of armed robbery, M.C.L. § 750.529; M.S.A. § 28.797. He was charged with robbing a Dearborn supermarket. Several store employees were present at the time of the robbery. They were shown a photographic array shortly after the robbery and before defendant's arrest. After his arrest, defendant was identified at a lineup by three witnesses. He was also identified at trial by the same witnesses as the robber. Defendant appeals of right, raising three issues relating to the photographic identification.

Defendant first asserts that he should have been represented by counsel at the photo identification, because he was either in custody or the focus of an investigation. See People v. Anderson, 389 Mich. 155, 205 N.W.2d 461 (1973), People v. Cotton, 38 Mich.App. 763, 197 N.W.2d 90 (1972). See, also, People v. Kachar, 400 Mich. 78, 252 N.W.2d 807 (1977).

The record discloses that defendant was not in custody at the time of the photo identification. Furthermore, police had not yet focused on defendant at that time; both defendant and another individual who was the registered owner of the getaway vehicle were suspects. At that time, nothing other than a link to the vehicle involved in the robbery implicated defendant. The facts of this case indicate that the police did not use the photographic showup in an attempt to build a case against defendant, but were then concerned with either establishing or ruling out defendant as a suspect. See People v. Kachar, supra, At 89, 252 N.W.2d 807, quoting People v. Cotton, supra. We conclude that the investigation had not focused on defendant at the [84 MICHAPP 181] time of the photo identification. Consequently, he was not entitled to counsel at that identification procedure.

Defendant also contends that the photographic identification procedure was impermissibly suggestive in two respects: first, the persons depicted were not all physically similar ¹ and, second, of the five to seven photographs displayed, there were as many as three different pictures of defendant.

An identification procedure's fairness is to be evaluated from the totality of the circumstances; the test is the degree of suggestion inherent in the manner of displaying the suspect's photograph to the witness. People v. Lee, 391 Mich. 618, 218 N.W.2d 655 (1974). We cannot say as a matter of law that the physical differences of the depicted persons constituted impermissible suggestion. See People v. Flippo, 70 Mich.App. 652, 247 N.W.2d 321 (1976), People v. Mitchell, 61 Mich.App. 153, 232 N.W.2d 340 (1975). See, generally, Anno: Admissibility of evidence of photographic identification as affected by allegedly suggestive identification procedures,39 A.L.R.3d 1000. Similarly, we do not find that showing different pictures of defendant along with pictures of other individuals was impermissibly suggestive, although a better procedure would have been to show a smaller proportion of pictures of defendant by increasing the total number of photographs shown. See Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). ² [84 MICHAPP 182] We therefore find that the photographic array was not impermissibly suggestive. However, even assuming it was suggestive, reversal is not automatically required.

A conviction based on an in-court identification ³ which is allegedly tainted by a suggestive pretrial photographic identification must be reversed unless an independent basis for the in-court identification can be shown by clear and convincing evidence. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), Simmons v. United States, supra, People v. Kachar, supra.

Kachar listed eight factors to be used in determining whether an independent basis exists. Applying these factors to the three employees who identified defendant, we find a sufficient basis for identification independent of the photographic procedure:

1. Prior relationship with or knowledge of the defendant. There is no evidence that the witnesses saw defendant before the evening of the robbery.

2. Opportunity to observe the offense. The manager saw the robber for five to ten minutes in the office during the course of the robbery. The office was apparently well lighted. The cashier saw defendant for approximately 25 seconds at a distance of 30 feet. The stock boy who made the identification watched the man for about five minutes.

3. Length of time between offense and disputed identification. The manager made the photo identification the day after the robbery. The cashier and the stock boy made the identification approximately five days after the robbery.

[84 MICHAPP 183] 4. Accuracy of prior descriptions and actual description. The detailed prior descriptions by the manager and the stock boy corresponded closely to defendant's description. The cashier's description, while less detailed, was also similar to defendant's actual description.

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