People v. Wilki, Docket No. 66825

• Citation: 132 Mich.App. 140,347 N.W.2d 735
• Decision Date: 16 March 1984
• Docket Number: Docket No. 66825
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Mattzoka WILKI, Defendant-Appellant.
• Court: Court of Appeal of Michigan (US)

Page 735

347 N.W.2d 735

132 Mich.App. 140

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Mattzoka WILKI, Defendant-Appellant.

Docket No. 66825.

Court of Appeals of Michigan.

Submitted Dec. 16, 1982.

Decided Feb. 7, 1984.

Released for Publication March 16, 1984.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Edward J. Grant, Pros. Atty., and John L. Wildeboer, Chief Appellate Asst. Pros. Atty., for the People.

Lester O. Pollak, Jackson, for defendant-appellant on appeal.

Before MAHER, P.J., and HOLBROOK and MARUTIAK ^*, JJ.

PER CURIAM.

Defendant was charged with armed robbery, M.C.L. Sec. 750.529; M.S.A. Sec. 28.797, felony-firearm, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2), and in a supplemental information with being a third-felony offender, M.C.L. Sec. 769.11; M.S.A. Sec. 28.1083. A jury convicted him of armed robbery but was unable to reach a verdict on the felony-firearm count. After the trial, defendant pled guilty to the supplemental charge and the prosecutor agreed not to proceed further on the felony-firearm charge. Defendant was sentenced to from 10 to 30 years imprisonment and appealed as of right. This Court originally granted the prosecutor's motion to affirm. On August 30, 1982, the Supreme Court, --- Mich. ---, 347 N.W.2d 694, vacated this Court's order and remanded the case for plenary consideration of the issues raised, 414 Mich. 905 (1982).

Defendant was convicted of the armed robbery of a party store clerk on the evening of February 2, 1980. The complainant testified that defendant, armed with a gun, came into the store and demanded money. Complainant gave the defendant approximately $20 in cash. After the defendant left, she called the police and gave them a description of the robber.

Some 10 to 15 minutes later, the police arrived at the store with defendant in a squad car. Complainant identified defendant as the robber.

This case requires us to again consider the circumstances under which the police may subject a suspect to an on-the-scene identification without counsel. Defendant argues that the procedure denied him his constitutional right to counsel and was unduly suggestive.

In Michigan, a defendant is generally entitled to have counsel present during an identification procedure. People v. Jackson, 391 Mich. 323, 217 N.W.2d 22 (1974). An exception is allowed where the police apprehend a suspect and return him for a prompt on-the-scene identification. People v. Anderson, 389 Mich. 155, 187, fn. 23, 205 N.W.2d 461 (1973). Such a procedure allows the police to know whom to arrest and assures the expeditious release of innocent suspects. It also allows the victim to confirm or deny the identification while his or her memory is fresh and accurate. People v. Turner, 120 Mich.App. 23, 34-35, 328 N.W.2d 5 (1982); People v. Purofoy, 116 Mich.App. 471, 480, 323 N.W.2d 446 (1982).

Several panels of this Court have allowed the police to conduct a prompt on-the-scene identification without regard to the circumstances in which the defendant was apprehended. See e.g., People v. Coward, 111 Mich.App. 55, 63, 315 N.W.2d 144 (1981); People v. Tucker, 86 Mich.App. 608, 611, 273 N.W.2d 498 (1978), lv. den. 406 Mich. 964 (1979). This line of cases seems to be based on the Anderson, supra, decision which recognized the procedure in a footnote without setting any guidelines for its use.

In recognition of the inherent suggestiveness of on-the-scene identifications without counsel being present, a panel of this Court in People v. Dixon, 85 Mich.App. 271, 271 N.W.2d 196 (1978), lv. den. 406 Mich. 906 (1979), held the procedure improper where the police have more than a mere suspicion that the defendant was involved in the crime. According to Dixon, the police in such cases may not return the defendant to the scene of the crime. Instead, they must permit defendant's counsel to be present. ¹

While we agree that a per se rule allowing on-the-scene identifications fails to consider the suggestive nature of such procedures and fails to protect a defendant's right to counsel, we find the Dixon "more than a mere suspicion" standard too restrictive. ² We, therefore, agree with the middle-ground approach adopted in People v. Turner, supra:

"Therefore, we would allow the police officers to conduct an on-the-scene identification without the presence of counsel any time promptly after the crime, except in certain situations. First, we require counsel to be present where the police have very strong evidence that the person stopped is the culprit. Strong evidence exists where the suspect has himself decreased any exculpatory motive i.e., where he has confessed or presented the police with either highly distinctive evidence of the crime or a highly distinctive personal appearance." 120 Mich.App. 36-37, 328 N.W.2d 5.

The Turner approach has been adopted by other panels of this Court. See People v. McCuaig, 126 Mich.App. 754, 338 N.W.2d 4 (1983); People v. Fields, 125 Mich.App. 377, 336 N.W.2d 478 (1983); People v. Raybon, 125 Mich.App. 295, 336 N.W.2d 782 (1983).

We recognize that the Turner standard will not always be an easy one to apply. In view of the purposes for on-the-scene identifications, we interpret the term "very strong evidence" to mean evidence such that the police, acting in good faith, have no reasonable necessity for confirming that the suspect they have apprehended is in fact the perpetrator. Applying this standard to the instant case, we are convinced that the on-the-scene identification was proper. A short time after the complainant's call to the police, an officer observed a man matching the general description given by complainant trotting down a street in the general vicinity of the store. The defendant was found shortly thereafter huddling in some bushes behind a garage. A search of the area produced $21 in cash in a nearby burning barrel. Defendant was placed in a squad car and transported back to the store.

Certainly, the police had reason to suspect defendant's involvement. However, the defendant neither matched a highly distinctive personal description nor was he found with highly distinctive evidence of the crime. In our opinion, the circumstances of defendant's apprehension did not constitute "very strong evidence" such that there was no reasonable necessity to conduct an on-the-scene identification. We conclude that the procedure was proper and that defendant was not denied his right to counsel.

Defendant next contends that the identification procedure was unduly suggestive and should have been excluded. However, defendant's failure to move for suppression of the identification testimony in the trial court precludes appellate review of this issue. People v. Moss, 397 Mich. 69, 70, 243 N.W.2d 254 (1976); People v. King, 107 Mich.App. 208, 210, 309 N.W.2d 207 (1981), rev'd on other grounds 413 Mich. 939, 321 N.W.2d 12 (1982). Even were we to review this issue, we would find that the procedure was not unnecessarily suggestive or conducive to misidentification.

The remaining issues raised by defendant are without merit. Defendant was not denied effective assistance of counsel under the standard set forth in People v. Garcia, 398 Mich. 250, 247 N.W.2d 547 (1976). Counsel's decision not to request a corporeal line-up and not to move for suppression of the identification testimony were matters of trial strategy. The record reveals that counsel thoroughly cross-examined complainant on the identification question and argued suggestiveness to the jury. See People v. Tucker, supra, 86 Mich.App. p. 611, 273 N.W.2d 498; People v. Johnson, 59 Mich.App. 187, 229 N.W.2d 372 (1975).

The record discloses that the precise terms of the plea agreement were stated on the record and that defendant, defense counsel and the prosecutor understood the terms of the agreement. There was full compliance with GCR 1963, 785.7(2).

Affirmed.

MAHER, Presiding Judge (concurring).

I specially concur to state that, after reevaluating the question of on-the-scene identifications, I have reconsidered my position in People v. Dixon, 85 Mich.App. 271, 271 N.W.2d 196 (1978), lv. den. 406 Mich. 906 (1979), and adopt the position taken in People v. Turner, 120 Mich.App. 23, 328 N.W.2d 5 (1982), lv. den. 417 Mich. 1064 (1983).

As the majority opinion states, panels of this Court have taken widely diverging positions on when a suspect is entitled to have counsel present at "prompt, 'on...