People v. Rivera

• Decision Date: 29 May 1975
• Docket Number: No. 3,Docket No. 20391,3
• Citation: 61 Mich.App. 427,232 N.W.2d 727
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Mario R. RIVERA, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 727

232 N.W.2d 727

61 Mich.App. 427

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Mario R. RIVERA, Defendant-Appellant.

Docket No. 20391.

Court of Appeals of Michigan, Division No. 3.

May 29, 1975.

Released for Publication Sept. 9, 1975.

James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., E. Brady Denton, Jr., Pros. Atty., for plaintiff-appellee.

Before D. E. HOLBROOK, P.J., and BRONSON and KELLY, JJ.

BRONSON, Judge.

On January 18, 1974 defendant-appellant, Mario Rivera, was convicted after jury trial of larceny in a building, M.C.L.A. § 750.360; M.S.A. § 28.592. He was sentenced on March 18, 1974 to a term of from 2 1/2 to 4 years in prison and appeals by right. Because he presents solely legal issues, we omit factual background.

Eyewitnesses to the crime described the larcenist as Mexican-American, 5 feet 2 inches tall, and 130 pounds. One of the eyewitnesses also mentioned that the person he saw had a tatoo on his right arm. A lineup was conducted two days after the larceny occurred, after Rivera had been taken into custody, and in the presence of counsel. Rivera and five other male prisoners were viewed by four eyewitnesses. All so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable Rivera and one of the other participants were clean-shaven; the others sported facial hair of varying style and type. Rivera was the shortest participant. Four of the others were approximately three or four inches taller than Rivera and the remaining participant--at over six feet--was considerably taller than the others. All wore shortsleeved shirts, clearly revealing Rivera's tatooed arms. Tatoos were not visible on the others. ¹

Rivera renews his claim, first raised below, that this lineup was so suggestive that it denied him a fair trial. After conducting an evidentiary hearing, the trial judge concluded that the lineup was not unduly suggestive. The lawyer representing Rivera at the lineup did not at that time object to the suggestiveness of the procedure or request that other participants or alternative procedures be utilized.

Though the test has been variously stated, ² it is now well settled that when a pretrial identification procedure fails to comport with due process requirements, any in-court identification is necessarily rendered suspect. ³ To determine whether due process requirements were met here, we must decide whether--in the language of the most recent Michigan Supreme Court pronouncement on the subject:

The '* * * identification procedure was So impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.' People v. Lee, 391 Mich. 618, 626, 218 N.W.2d 655, 659 (1974). (Emphasis in original.)

Rivera must prove that the lineup was impermissibly suggestive, since he was represented by counsel at the lineup. People v. Young, 21 Mich.App. 684, 694, 176 N.W.2d 420 (1970), People v. Curtis, 34 Mich.App. 616, 192 N.W.2d 10 (1971). Rivera has not persuaded us that the identification procedure involved in this case violated due process standards.

That Rivera was the shortest lineup participant does not undermine the reliability of the identification. People v. Wilson, 20 Mich.App. 410, 413, 174 N.W.2d 79 (1969), cited by defendant, states that a difference in height is alone sufficient to render a lineup impermissibly suggestive. However, that statement is dictum, since the Court reversed Wilson's conviction on other grounds. Compare People v. Lloyd, 5 Mich.App. 717, 724, 147 N.W.2d 740 (1967), People v. Herrera, 42 Mich.App. 617, 620, 202 N.W.2d 515 (1972). Its conclusion on the lineup issue is more properly read as an admonition to the trial judge that direct evidence of the lineup not be allowed on retrial. The height differences involved in this case are not striking. Five of the six participants, including Rivera, are approximately the same height.

That other lineup participants had beards or mustaches and Rivera did not does not make the identification procedure unfair. Clean-shavenness was not one of the characteristics listed in the original eyewitness description; therefore, we must assume, without evidence to the contrary that this characteristic was not controlling in the minds of the identifying witnesses. Moreover, one other lineup participant was also clean-shaven and the mustaches worn by two of the others were not dominant facial features, to say the least. Finally, the ease with which such a characteristic can be created or destroyed counsels generally against relying on it in making identifications; ⁴ again, absent any suggestion in the record to the contrary, we must assume that the witnesses did not rely on this characteristic in making their identifications.

That Rivera was the only lineup participant with tatoos on his arms does not adversely affect the fairness of the lineup either, inasmuch as the only eyewitness who even mentioned that the suspect had tatoos did not identify Rivera at the lineup. Moreover, none of the other eyewitnesses indicated that the presence of tatoos on Rivera's arms made any difference in their identification of him at the lineup.

What was said in People v. Lloyd, supra, 5 Mich.App. at 724--725, 147 N.W.2d at 744 and repeated in People v. Herrera, supra, 42 Mich.App. at 621--622, 202 N.W.2d 515, deserves to be reiterated:

'Lineups are conducted in police stations, and the persons who participate in the lineup are taken from those who are being held in custody. It would be unusual indeed if the police had five persons with similar physical characteristics locked up in the same jail. Moreover, 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.'

Considering the 'totality of circumstances', we are of the opinion that the lineup conducted in this case was not impermissibly suggestive and did not deny Rivera due process of law.

Rivera's other two ⁵ assignments of error involve jury instructions. His claim that the jury was improperly instructed on specific intent is unfounded. The trial judge informed the jury that it was their duty to determine whether Rivera possessed the requisite felonious intent. In order to aid in that determination, the judge instructed the jury that they could presume that Rivera intended the natural consequences of his acts if in their judgment the evidence justified such an inference. The trial judge did not tell the jury that intent could be proved solely from the acts of defendant. This was quite plainly a permissive inference, not a mandatory presumption. The instruction did not run afoul of the principles stated in People v. Jordan, 51 Mich.App. 710, 216 N.E.2d 71 (1974). The jury was permitted but not required to find from the evidence that Rivera had the specific intent to commit larceny. This was proper. People v. Jordan, supra, at 716, 216 N.W.2d 71.

Rivera's dissatisfaction with the trial judge's instruction on reasonable doubt is answered by reference to People v. Cox, 70 Mich. 247, 38 N.W. 235 (1888), where the Supreme Court approved an instruction on reasonable doubt similar in all important respects to that given here.

Affirmed.

1 The prosecutor maintains that other lineup participants had tatoos on their arms. Rivera disputes this. The record does not clearly resolve the question. We assume for purposes of this appeal that Rivera was the only lineup participant with visible tatoos.

2 In Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), the United States Supreme Court held that due process is violated whenever an identification procedure is 'unnecessarily suggestive and conducive to irreparable mistaken identification'. Stovall, supra, at 302, 87 S.Ct. at 1972. This test was adopted by our Supreme Court in People v. Hallaway, 389 Mich. 265, 271, 205 N.W.2d 451 (1973), as stated in People v. Anderson, 389 Mich. 155, 205 N.W.2d 461 (1973): 'Unnecessarily suggestive and conducive to irreparable misidentification procedures deny due process.' Anderson, supra, at 169, 205 N.W.2d at 466.

In Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), the test was restated: Due process is violated only if the 'identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of...