People v. Young

• Decision Date: 06 February 1970
• Docket Number: No. 1,Docket No. 7038,1
• Citation: 176 N.W.2d 420,21 Mich.App. 684
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Donnie C. YOUNG, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 420

176 N.W.2d 420

21 Mich.App. 684

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Donnie C. YOUNG, Defendant-Appellant.

Docket No. 7038.

Court of Appeals of Michigan, Division No. 1.

Feb. 6, 1970.

Released for Publication May 1, 1970.

Robert H. Golden, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Solicitor Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Angelo A. Pentolino, Asst. Pros. Atty., for plaintiff-appellee.

Before LESINSKI, C.J., and LEVIN and DANHOF, JJ.

LESINSKI, Chief Judge.

Defendant Donnie C. Young was convicted after a jury trial of assault with intent to rob and steal being armed, M.C.L.A. § 750.89 (Stat.Ann.1962 Rev. § 28.284). From this conviction defendant appeals as of right.

On May 16, 1967, two men entered a motel in the city of Inkster at approximately 11 p.m. After some conversation with the clerk on duty, who was the wife of the proprietor they produced weapons and announced that it was a hold up. Upon hearing the commotion the owner came into the front office from the adjoining living quarters, whereupon he too was held at bay. In an effort to find more money, one of the hold up men took the owner back into the living quarters and the wife followed. After a scuffle with the owner, the thief said 'Let's get the hell out of here,' ran back to the front office where the other waited, scooped some money from the cash register, and the two men ran out. The owner followed them out and waved down a passing police car. The police apprehended defendant and Ronald Carter almost immediately thereafter and placed them under arrest. A Pistol was confiscated from Young and a .22 caliber revolver from Carter. A search of Young at the police station produced $48 in currency and $12.55 in change.

At trial Young testified on his own behalf. During the course of direct examination he admitted being at the motel on the evening of the hold up. It was his contention, however, that he was suffering from a bad hangover, resulting from an afternoon in a bar, and that he was sleepy, due to his having taken some pills known as Seconals or 'reds.' Under this condition, Young claimed that he was not fully aware of what was going on and that if a hold up took place he was not a knowing participant. Although he admitted handling the cap pistol in the motel and in the presence of the victims, he testified that Carter had first held it, then handed it to Young, who tried to hand it back, but kept it when Carter refused to retake it. Young stated that Carter took the owner into an adjoining room and that the owner's wife followed when Young put the cap pistol into his pocket. There was a tussling noise in the other room, Carter reappeared saying 'Let's get the hell out of here,' and they left.

During the day following the hold up Young and Carter were presented to the witnesses in a lineup. The circumstances and result of the lineup are not presented in the record.

At trial, prior to the selection of the jury, defendant moved to suppress any testimony relating to the identification at the lineup until a separate preliminary hearing on the fairness of the lineup could be held. The motion was taken under advisement. Immediately prior to the prosecution's calling of the desk clerk, the defendant again objected, arguing that a procedure similar to a 'Walker hearing' ¹ should be held to determine 'whether there was a denial of due process in its (the lineup's) composition and in its conduct.' Again the motion was taken under advisement. When the witness testified that she recognized the defendant as one of the hold up men, defendant objected for a third time. The court overruled the objection.

The first issue raised on appeal is whether defendant was denied due process by the trial court's refusal to hold a separate preliminary evidentiary hearing.

Initially we note that the issue was properly preserved for appeal by defendant's timely motion. People v. Childers (1969), 20 Mich.App. 639, 174 N.W.2d 565. We therefore turn to the merits.

It is argued by the people that the question is controlled by People v. Barrow (1969), 17 Mich.App. 624, 170 N.W.2d 250. There we held that United States v. Wade (1967), 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, which held that accused persons have the right to counsel at lineups, was not retroactive. The lineup in the instant case occurred May 17, 1967, several weeks prior to the effective date of Wade, June 12, 1967.

This argument, however, overlooks a fundamental distinction. The Wade decision established an exclusionary rule for identifications made during confrontations at which defendant was denied his right to counsel. Independent of the right to counsel, however, is the right to have a lineup not unnecessarily suggestive in nature when viewed within 'the totality of the circumstances surrounding' the confrontation. Stovall v. Denno (1967), 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199, 1206. Thus, whether or not a lawyer is present and whether or not the lineup took place before Wade, the right exists as an element of due process.

The distinction was clearly noted in Stovall v. Denno, Supra, where the Court noted at pp. 301, 302, 87 S.Ct. at p. 1972:

'We turn now to the question whether petitioner, although not entitled to the application of Wade and Gilbert to his case, is entitled to relief on his claim that in any event the confrontation conducted in this case was so unnecessarily suggestive and conductive to irreparable mistaken identification that he was denied due process of law. This is a recognized ground of attack upon a conviction independent of any right to counsel claim. Palmer v. Peyton (CA 4, 1966), 359 F.2d 199.' (Emphasis supplied.)

Even prior to Wade this distinction was set forth in Palmer v. Peyton (CA 4, 1966), 359 F.2d 199. There the court noted by way of footnote at p. 202:

'At the reargument of this case, we requested discussion of the possible effect of the fact that Palmer was without counsel at the identification, in light of Escobedo v. Illinois (1964), 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977. Cf. United States ex rel. Stovall v. Denno (CA 2, 1966), 355 F.2d 731. We do not reach Escobedo problems, however, since we conclude that the entire atmosphere surrounding the identification was a violation of due process.' ²

In the course of the witness' testimony, no mention was made of the pretrial lineup. The fact that the witness did not testify regarding the prior identification does not in any way remove the taint of a prejudicial lineup if such a taint in fact exists.

Finally, the point is raised that since defendant has testified that he was present at the motel, any possible dispute as to whether the identification is correct is foreclosed. We disagree. ³ The record in the instant case is absolutely devoid of any indication of what events occurred at the lineup. We are unable to say on the basis of such a record that the lineup was not conducted in an unnecessarily suggestive manner. We are also unable to say that but for the lineup the witnesses would have been able to identify defendant at trial. Moreover, but for the identification at trial, defendant's testimony might not be on the record.

When the fairness of a pretrial lineup is timely raised, identification testimony of those participating in the lineup process should not be admitted in evidence until a separate determination is made that the lineup was held in a manner consistent with the requirements of due process, or that the in-court identification would be free of taint and would have an independent origin.

We are not satisfied beyond a reasonable doubt that the lineup did not contribute to defendant's conviction. Chapman v. California (1967), 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 704; People v. Teal (1969), 20 Mich.App. 176, 173 N.W.2d 736.

In People v. Walker (1965), 374 Mich. 331, 132 N.W.2d 87, the Court held that a separate evidentiary hearing was required to determine the voluntariness of a confession. The decision was in direct response to the United States Supreme Court's opinion in Jackson v. Denno (1964), 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908. The basis for the rule set forth in Jackson was twofold. At 379, 84 S.Ct. at 1782 the Court noted that when a jury returns a general verdict of guilty:

'It is impossible to discover whether the jury found the confession voluntary and relied upon it, or involuntary and supposedly ignored it. Nor is there any indication of how the jury resolved disputes in the evidence concerning the critical facts underlying the coercion issue. Indeed, there is nothing to show that these matters were resolved at all, one way or the other.'

The second difficulty with having the jury resolve the issue was set forth earlier in Stein v. New York (1953), 346 U.S. 156, 177, 73 S.Ct. 1077, 1089, 97 L.Ed. 1522, 1539, and cited in Jackson at p. 380, 84 S.Ct. at 1782:

'Perhaps a more serious, practical cause of dissatisfaction is the absence of any assurance that the confession did not serve as makeweights in a compromise verdict, some jurors accepting the confessions to overcome lingering doubt of guilt, others rejecting them but finding their doubts satisfied by other evidence, and yet others or perhaps all never reaching a separate and definite conclusion as to the confessions but returning an unanalytical and impressionistic verdict based on all they had heard.'

The same reasoning applies to pretrial confrontations. When a general verdict of guilty is returned, it is impossible to determine how a jury resolves the issue of the fairness and possible taint of a lineup or whether they resolve it at all. Further, a jury may use a pretrial identification as a makeweight to resolve doubt against a defendant despite its possibly being the result of unnecessarily suggestive circumstances.

We, therefore, remand for an...