People v. Williams

• Decision Date: 09 January 1975
• Docket Number: Docket No. 18688,No. 3,3
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Curtis WILLIAMS, Jr., Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 584

226 N.W.2d 584

57 Mich.App. 612

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Curtis WILLIAMS, Jr., Defendant-Appellant.

Docket No. 18688.

Court of Appeals of Michigan, Division No. 3.

Jan. 9, 1975.

Released for Publication March 13, 1975.

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

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Ronald J. Taylor, Pros. Atty., for plaintiff-appellee.

Before BRONSON, P.J., and HOLBROOK and V. J. BRENNAN, JJ.

PER CURIAM.

Defendant-appellant, Curtis Williams, Jr., was found guilty by jury verdict of assault with intent to rob while armed. M.C.L.A. § 750.89, M.S.A. § 28.284, on June 22, 1973. He was sentenced on August 1, 1973, to a term of from 4 to 20 years' imprisonment and appeals by right.

Williams first challenges the identification procedures employed by the police officers in their quest to determine the identity of the alleged assailant. He insists that the on-the-scene corporeal identifications of Williams made by the victim, Carolyne Landrith, and an eyewitness, Samuel Hayes, were constitutionally infirm, both because they were obtained in the absence of counsel and because the procedures utilized were impermissibly suggestive. We disagree.

Counsel was not required under the circumstances presented here. Though it is now well settled that as a general rule there is a right to counsel during any corporeal identification once a suspect is in custody, People v. Anderson, 389 Mich. 155, 205 N.W.2d 461 (1973); People v. Lee, 391 Mich. 618, 218 N.W.2d 655 (1974), there is also a well-recognized exception to the general rule. On-the-scene confrontations 'necessary in order for the police to know whom they should arrest', People v. Martin, 42 Mich.App. 236, 240, 201 N.W.2d 284, 286 (1972), can properly be conducted in the absence of counsel. People v. Hutton, 21 Mich.App. 312, 321--324, 175 N.W.2d 860, 865--866 (1970); People v. Foster, 51 Mich.App. 213, 218, 214 N.W.2d 723, 726 (1974); People v. Wright, 38 Mich.App. 427, 431, 196 N.W.2d 839, 841 (1972); People v. Anderson, Supra, 389 Mich. at 187, 205 N.W.2d 461.

The identification procedure pursued in the absence of counsel in this case clearly fits into this exception. After witnessing the assault, Hayes called the police, who shortly thereafter apprehended four young males in the immediate vicinity. They were quickly returned to the scene where Williams, one of the detained youths, was positively identified by both Hayes and the victim. The police acted quite reasonably in attempting to ascertain whether any of the apprehended youths should be taken into custody. This in-the-field corporeal show-up, within minutes after the alleged crime occurred, was clearly conducted for the purpose of deciding whether an arrest should be made. It was a permissible--indeed indispensable--police practice.

Williams's claim that the on-the-scene identification procedure was impermissibly suggestive is not properly before this Court. No attempt was made to suppress the evidence before trial. No objection to the identifications was registered during trial. In the absence of a record upon which we can properly consider this claim, the alleged error has been waived. People v. Childers, 20 Mich.App. 639, 174 N.W.2d 565 (1969); People v. Jones, 44 Mich.App. 633, 205 N.W.2d 611 (1973). The identifications based on the on-the-scene show-up were properly admitted into evidence at trial.

A third eyewitness also identified Williams prior to trial. Pat Cox, who was driving by when the alleged assault occurred and honked her horn in an effort to divert the attention of the assailant, identified Williams as the assailant at the police station through a one-way mirror five hours after the incident. Her in-court identification was retracted at trial, when she admitted that she could not identify Williams at trial from what she had seen on the street that night. No objection was made, either before or during trial, to her testimony concerning the pre-trial identification of Williams.

The show-up involving witness Cox was impermissible, because it was held in the absence of counsel. ¹ Williams was in custody and the on-the-scene exception to the Anderson rule discussed above cannot be extended to a show-up held at the police station five hours after Williams's arrest.

The error, however, is harmless because the identification testimony provided by Cox was merely cumulative. People v. Hess, 39 Mich.App. 28, 33--34, 197 N.W.2d 118, 120 (1972); People v. Willis, 46 Mich.App. 436, 441, 208 N.W.2d 204, 206--207 (1973); People v. Green, 51 Mich.App. 383, 385, 214 N.W.2d 891, 892 (1974). The absence of any objection to this testimony and the fact that during cross-examination defense counsel effectively undermined the reliability of Cox's identification of defendant are additional reasons for refusing to hold that prejudicial error was created by the admission of Cox's testimony into evidence.

Williams also claims that he was denied a fair trial when the trial judge asked the victim...