People v. Winters, Docket No. 184935

• Decision Date: 14 October 1997
• Docket Number: Docket No. 184935
• Citation: 225 Mich.App. 718,571 N.W.2d 764
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Andre C. WINTERS, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 764

571 N.W.2d 764

225 Mich.App. 718

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Andre C. WINTERS, Defendant-Appellant.

Docket No. 184935.

Court of Appeals of Michigan.

Submitted March 4, 1997, at Detroit.

Decided Oct. 14, 1997, at 9:05 a.m.

Released for Publication Jan. 8, 1998.

Frank J. Kelley, Attorney, Thomas L. Casey, Solicitor General, Richard Thompson, Prosecuting Attorney, Joyce F. Todd, Chief, Appellate Division, and Janice A. Kabodian, Assistant Prosecuting Attorney, for People.

State Appellate Defender by Desiree M. Ferguson, for defendant-appellant on appeal.

Before DOCTOROFF, P.J., and YOUNG and MICHAEL J. KELLY, JJ.

YOUNG, Judge.

Following a jury trial, defendant was convicted of assault with intent to commit murder, M.C.L. § 750.83; M.S.A. § 28.278, possession of a short-barreled shotgun, M.C.L. § 750.224b; M.S.A. § 28.421(2), and possession of a firearm during the commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2). Defendant was sentenced to concurrent prison terms of twenty-five to fifty years for the assault with intent to commit murder conviction and three to five years for the possession of a short-barreled shotgun conviction, to be served consecutively to a two-year term for the felony-firearm conviction. Defendant appeals his convictions and sentences as of right. We affirm.

On January 9, 1994, at about 11:10 p.m., the victim drove into the parking lot of a White Castle restaurant on Woodward Avenue in Ferndale. As he parked, the victim saw three men, who were standing in the parking lot near the drive-through lane, approach his car. One man stood next to the driver's side of the victim's car, one stood on the passenger side, and one stood in front of the restaurant door facing the car. The man standing next to the passenger's side of the car, later identified as defendant, was wearing a red bandana on his head, a long red-and-black plaid hunter's jacket, and a shorter black leather jacket over that. The man standing next to the driver's side of the car tapped on the window. The victim rolled down the window about an inch, and the man asked him for the time. The victim told the man the time and rolled the window up again.

At that point, the victim noticed movement near the passenger's side of the car. The victim saw defendant pull a shotgun from under his jacket and fire. The victim was struck in the right arm. Some of the shotgun pellets also struck the victim in the chest and chin. The victim managed to pull out of the parking lot and drive away. He eventually stopped the car, got out, and collapsed at the doorway of a Subway sandwich shop about a quarter mile from the scene of the shooting. The victim was bleeding severely and asked repeatedly whether his right arm was still attached. When the police arrived, the victim told them he had been shot. He gave the police a description of his assailants, stating that one man was wearing a New York Giants baseball cap and that another one had a Chicago Bulls baseball cap. The victim specifically described the shooter as a white male wearing a bandana and a red-and-black plaid jacket.

Officer Michael Lennon testified that he proceeded to the White Castle restaurant, where he spotted three men matching the descriptions given by the victim standing at a telephone booth. Two of the men, Chuck Vigil and defendant, ran upon seeing the officer. The third, David Boswell, told Officer Lennon that the other two men had just robbed him and taken his coat. However, when Officer Lennon and Boswell drove to where defendant and Vigil had been apprehended by other officers, Boswell denied that they were the men who robbed him. All three men were taken into custody and driven to the Subway restaurant. Defendant was wearing a red bandana and a red-and-black plaid jacket. As the victim was being placed in the ambulance, he stated that the three suspects were the ones who shot him. The victim specifically identified defendant as the shooter. The police eventually found a shotgun, which recently had been fired, buried in a mound of snow approximately thirty feet from the telephone booth in the White Castle parking lot.

I

Defendant first argues that the victim's on-the-scene identification was improper because it was taken in violation of defendant's "constitutional" right to counsel. We disagree.

We note initially that this issue does not involve defendant's Sixth Amendment right to counsel. U.S. Const., Am. VI. In Moore v. Illinois, 434 U.S. 220, 226-227, 98 S.Ct. 458, 463-464, 54 L.Ed.2d 424 (1977), the United States Supreme Court adopted the plurality opinion in Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), which stated that the right to counsel announced in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) only attaches to corporeal identifications conducted "at or after the initiation of adversary judicial criminal proceedings...." Kirby, supra at 689, 92 S.Ct. at 1882.

Rather, the issue in this case is whether defendant's right to counsel established by our Supreme Court in People v. Anderson, 389 Mich. 155, 205 N.W.2d 461 (1973), was violated. In Anderson, the Court applied the Wade requirements to all pretrial identification procedures. Id. at 168, 205 N.W.2d 461. The Anderson Court rejected Kirby because it contained no majority opinion regarding a defendant's right to counsel at "pre-indictment" out-of-court corporeal identifications. Id. at 170, 205 N.W.2d 461. Anderson, however, was decided before the United States Supreme Court's approval in Moore of the distinction drawn by the Kirby plurality. Thus, it appears that Anderson was our Supreme Court's unsuccessful attempt to predict the course that the United States Supreme Court would take in applying the Wade requirements to "pre-indictment" identifications. ¹

Again before Moore, in People v. Jackson, 391 Mich. 323, 338, 217 N.W.2d 22 (1974), our Supreme Court acknowledged that the Anderson rules were not mandated by constitutional guarantees:

The ... Anderson rules ... represent the conclusion of this Court, independent of any Federal constitutional mandate, that, both before and after commencement of the judicial phase of a prosecution, a suspect is entitled to be represented by counsel at a corporeal identification....

Nevertheless, the Jackson Court, again on an unspecified basis, reaffirmed the Anderson rules in the exercise of its "constitutional power to establish rules of evidence applicable to judicial proceedings in Michigan courts," in order to "preserve best evidence eyewitness testimony from unnecessary alteration by unfair identification procedures...." Id. at 338-339, 217 N.W.2d 22; see also id. at 354-355, 217 N.W.2d 22 (Coleman, J., dissenting).

Of course, the Michigan and federal constitutions may have different meaning. People v. Pickens, 446 Mich. 298, 315, 521 N.W.2d 797 (1994). However, Anderson and Jackson did not even mention, much less cite, as a basis for the Anderson rules our state analogue of the Sixth Amendment, Const. 1963, art. 1, § 20. Consequently, neither Anderson nor Jackson can be read as expanding art. 1, § 20 beyond those protections provided by the Sixth Amendment. Indeed, in People v. Cheatham, 453 Mich. 1, 551 N.W.2d 355 (1996), the Supreme Court recognized, albeit in dicta, that a defendant's right to counsel under Const. 1963, art. 1, § 20, like the Sixth Amendment right to counsel, " 'attaches only at or after the initiation of adversary judicial proceedings by way of formal charge, preliminary hearing, indictment, information, or arraignment.' " Cheatham, supra at 9, n. 8, 551 N.W.2d 355, quoting People v. Wright, 441 Mich. 140, 173, 490 N.W.2d 351 (1992) (RILEY, j., dissenting). as justice RILEY noted in her disseNt In Wright, supra, "[v]irtually all Michigan case law regarding the right to counsel tracks the analysis by the United States Supreme Court of the Sixth Amendment right to counsel." Id. at 173, 490 N.W.2d 351.

The confusion among panels of this Court resulting from Anderson was succinctly explained by Judge WAHLS in his opinion in People v. Marks, 155 Mich.App. 203, 399 N.W.2d 469 (1986):

Since Anderson, the question of on-the-scene identification has been raised in the context of the "constitutional right to counsel," see, e.g., People v. Wilki, 132 Mich.App. 140, 142, 347 N.W.2d 735 (1984), and specifically the "Sixth Amendment right to counsel," see, e.g., People v. Fields, 125 Mich.App. 377, 380, 336 N.W.2d 478 (1983); People v. Turner, 120 Mich.App. 23, 33-34, 328 N.W.2d 5 (1982) ...; People v. Coward 111 Mich.App. 55, 62, 315 N.W.2d 144 (1981)....

While Anderson and the above cases from this Court at first glance appear to be Sixth Amendment cases, further inquiry reveals otherwise. In People v. Jackson, 391 Mich. 323, 338, 217 N.W.2d 22 (1974), the Supreme Court observed that the Anderson rules "represent the conclusion of this Court, independent of any Federal constitutional mandate, that, both before and after commencement of the judicial phase of a prosecution, a suspect is entitled to be represented by counsel at a corporeal identification." Furthermore, were Anderson a statement of Sixth Amendment law, it would no longer be controlling, because the United States Supreme Court has since approved of the distinction drawn by the Kirby plurality but rejected in Anderson. [Marks, supra at 209-210, 399 N.W.2d 469.] ²

If we were writing on a clean slate, we would adopt the federal rule, as announced in Kirby and adopted in Moore, that the right to counsel provided in Wade attaches only to corporeal identifications conducted at or after the initiation of adversary judicial criminal proceedings. Moore, supra at 226-227, 98 S.Ct. at 463-464. The Wade decision was rightly focused on the routine "police station" lineup and show-up procedures employed by the police to obtain evidence for use at trial as a "critical stage" wherein...