People v. Wright

• Decision Date: 07 September 1976
• Docket Number: 21104--5,Docket Nos. 21809--10
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Noah WRIGHT and Michael Bruce Hayden, Defendants-Appellants.
• Court: Court of Appeal of Michigan — District of US

Page 422

246 N.W.2d 422

71 Mich.App. 40

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Noah WRIGHT and Michael Bruce Hayden, Defendants-Appellants.

Docket Nos. 21809--10, 21104--5.

Court of Appeals of Michigan.

Sept. 7, 1976.

Released for Publication Nov. 1, 1976.

Wistrand, Wistrand & Brendle by Pamela G. Wistrand Denson, Flint, for wright.

Shaheen & Shaheen by William A. Shaheen, Jr., Flint, for Hayden.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert F. Leonard, Pros. Atty., Donald A. Kuebler, Chief Asst. Pros. Atty., for plaintiff-appellee.

Before ALLEN, P.J., and D. E. HOLBROOK, Jr. and PAPP, ^* JJ.

ALLEN, Judge.

The defendants were convicted of attempted murder. M.C.L.A. § 750.91; M.S.A. § 28.286 (and sentenced to life imprisonment), rape, M.C.L.A. § 750.520; M.S.A. § 28.788 (repealed by 1974 P.A. 266), (30--50 years) and larceny from a person, M.C.L.A. § 750.357; M.S.A. § 28.589, (6--10 years). The sentences were set to run consecutively with a 22--40 year sentence imposed following defendants' conviction at an earlier trial on another rape charge. The defendants allegedly committed the offenses involved in the present appeal while free on bond pending trial on the other charge. Their convictions on that charge have already been affirmed by this Court (People v. Wright, docket #18753--4, memorandum opinion released November 29, 1974, People v. Hayden, docket #18884--5, memorandum opinion released November 29, 1974).

At approximately 2 a.m. on August 6, 1973, the complainant was abducted just outside her parents' home in Genesee County by two men who forced her into their car, drove to a secluded area and then raped her. One of the men then choked her with a piece of her own clothing, causing her to lose consciousness. When she awoke several hours later, she walked a short distance to a main road where she was spotted by a motorist and taken home.

She was questioned briefly by Genesee County deputies at her home and at the emergency room of the hospital where she was taken for treatment. She told the officers that her assailants were two black men, one much taller than the other. She also remembered that both men had medium length hair, and that one had some facial hair. That description fit the defendants in only a very general sense. Both defendants are tall (6 5 and 6 1 ), but the complainant initially estimated that both assailants were under 6 .

Attempts to get a description of the assailants' car were even less successful. It was initially described as maroon, but later was described as 'light colored' with no specific color mentioned. The complainant was certain that the car was rather large.

The defendants' names came to the attention of the Sheriff's Department when the detective in charge of the case called the Flint Police Department to inquire about similar cases. He was told about the defendants whose trial on the other rape charge was about to start. After securing photographs of the defendants, the detective selected 10 other pictures from his files and went to the complainant's home. Showing the pictures one by one, he imstructed her to reject the pictures of men who definitely were not her attackers and set aside any who might be the guilty persons. Of the 12 photos, she selected the defendants as the only two possible suspects.

The police knew that the defendants would be in court the next day. They asked the complainant to come to the court-house (also police headquarters) on the pretext of obtaining additional physical evidence from her. Their hope was that she would accidentally encounter the defendants and spontaneously identify them. When the 'accidental' meeting failed to occur, the complainant was taken to the parking lot and asked if any of the cars there were the same color as the one in which she had been attacked. But she was too uncertain about the color to pick out any car. A car which the officers knew belonged to one of the defendants was one of several which were specifically pointed out to her.

In a further attempt to arrange a 'chance' confrontation, the complainant was asked to return after lunch. She was then taken to the parking lot, again with the pretext of looking for cars with similar colors. The defendants drove into the parking lot about 15 minutes later. The detective with the complainant pointed out the car as he had several preceding ones. She had no reaction to the car; but she immediately asked if she could get a closer look at the occupants.

A direct confrontation was arranged by waiting for the defendants by the court-house elevators and riding with them up to the 5th floor where their trial was taking place. The complainant then definitely identified the defendants. They were arrested later that day.

Prior to trial, a Wade ¹ hearing was held on the defense motion to suppress the identification testimony. The trial judge found no error in the police procedures and denied the motion.

The complainant identified the defendants at trial. She also testified about the earlier photographic and parking lot identifications.

As part of the defense, defendants sought to present the testimony of a psychiatrist--Apparently to testify about how the complainant's identification of the defendants had been influenced by the allegedly suggestive police techniques. The trial judge refused to allow the psychiatrist to testify, noting specifically that the doctor had never examined the complainant. We hold that the ruling was not an abuse of discretion. People v. Howard, 391 Mich. 597, 218 N.W.2d 20 (1974).

In his instructions to the jury, the judge stated that, in order to convict, they must find that the defendants had carnal knowledge of the complainant; but he failed to state that carnal knowledge meant penetration. There was no objection to the instruction as given. Penetration is an essential element of the crime of rape and a jury must be told that they may not convict unless they find that penetration occurred. People v. McGillen #1, 392 Mich. 251, 220 N.W.2d 677 (1974). Since the omission involved an essential element of the offense, review is not precluded by the defendant's failure to object to the instruction as given. GCR 1963, 516.2, People v. Liggett, 378 Mich. 706, 148 N.W.2d 784 (1967). While we seriously doubt that the jury was misled, the omission in this case was too basic to be ignored. The defendants' convictions for rape must be reversed.

However, that ruling does not affect the convictions for attempted murder and larceny from a person. The defendants argue that those convictions must be overturned because the identification procedures detailed earlier in this opinion were improper. The photographic identification and the parking lot identification are discussed separately below. In connection with each, three questions must be addressed: (1) Should a formal line-up have been used instead? (2) Should the defendants' attorneys have been present? (3) Were the procedures unduly suggestive?

THE PHOTOGRAPHIC IDENTIFICATION

Interpreting a series of U.S. Supreme Court cases, ² and at times announcing more protective rules based on Michigan law, our Supreme Court has held that a photographic identification should not be attempted where a suspect is known to be in custody or can readily be produced for a lineup. Under those circumstances, a lineup attended by counsel must be held instead. People v. Anderson, 389 Mich. 155, 205 N.W.2d 461 (1973); People v. Jackson, 391 Mich. 323, 217 N.W.2d 22 (1974).

The defendants in the present case were free on bond awaiting trial on the other charge when the photographs were shown to the complainant. They were not 'in custody' but they could have been 'readily produced for a lineup.' In both People v. Smalls, 61 Mich.App. 53, 232 N.W.2d 298 (1975); and People v. Beasley, 55 Mich.App. 583, 223 N.W.2d 77 (1974), the use of photographs instead of a lineup was found to be improper where the defendants were free on bond.

But the present case is distinguishable. Two factors must be present in order to invoke the rules of People v. Anderson, supra. In addition to having been readily available for a lineup, the defendants must also have been 'suspects'. We find that the latter showing has not been made. At the time of the photographic display, there was absolutely no evidence linking the defendants to this crime. Their pictures were included solely because of the other charges against them--and because the assailants were black men. At that point, the evidence would have supported at most a 'mere suspicion' of guilt. People v. Lee, 391 Mich. 618, 218 N.W.2d 655 (1974), held that a mere suspicion is not enough to invoke the People v. Anderson, supra, rules.

For similar reasons, we hold that the defendants did not have a right to have counsel present at the photographic identification. People v. Phelps, 57 Mich.App. 300, 225 N.W.2d 738 (1975).

We also reject the defendants' argument that the photo display was conducted in an improperly suggestive manner. We have examined the photographs shown to the complainant and the manner of presentation as described in the Wade hearing transcript. The identification was properly conducted. People v. Mitchell, 61 Mich.App. 153, 232 N.W.2d 340 (1975). Therefore, testimony about the photographic identification was properly admitted at trial. Contrast Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967).

THE PARKING LOT IDENTIFICATION

We have not been able to discover a post-Wade case involving an analogous procedure, i.e., a confrontation deliberately staged by the police without the knowledge of their own witness. Thus, the present case is distinguishable from on-the-scene confrontations, ³ accidental confrontations ⁴ and staged confrontations planned jointly by the police and their witness. ⁵ We hold that use of this apparently unique procedure was improper at that stage of the investigation.

The...