*1 Aрp supra. did Wade court Moreover, the Schrader, lineup procedure here, used the kind of condemn not right simply had under the accused held that but the Sixth the Federal Constitution Amendment attorney present. an to have regard- claims defendant’s consider not needWe gestae ing nonproduction witness and con- a res of cerning motion for a defendant’s the denial of disposition herein made. in view of the mistriаl trial. remanded a new and Reversed J., concurred. J., and Lesinski, C. v. ROWELL PEOPLE Court Record—Scope Appeal and Error — of Review. 1. Criminal Law — supported are appeal on which not Claims of criminal defendant by Appeals. by may be considered the record Delays Dependant. Speedy 2. Trial — Charseable Same — right a speedy trial eannot assert as denial of his Defendant holding delays in his examination trial cаused holding had waived examination after he earlier possible prejudice remove first examination to second having appointed been related to the counsel’s occasioned where the record does not show that de- speedy made demand for trial and defendant failed fendant delays. prejudiced he was to show [6] '1] ’2] A, ’3] Admissibility 5 21 cation of accused. 71 5 Am Jur 7] Am Jur Am Jur Am Jur 21 Am Jur 2d, Appeal 2d, Appeal References 2d, 2d, Criminal Law § Criminal Law 2d_, evidence Criminal ALR2d 449. for Points as to Error Error Law 368. § 252. 309 et § extrajudicial § § in Headnotes seq. or pretrial identifi- Opportunity Assistance of Counsel. to Obtain 3. Same — robbery adequate not denied charged with armed Defendant counsel before examination where opportunity to consult with testimony *2 and, having heard to consult counsel he was allowed examination, inwas at an earlier of witness cоnducting in of counsel cross-examination position to aid any failed to show and where defendant resulting prejudice. Lineup of Counsel — Law —Assistance Same —Constitutional Application —Prospective of Precedent. suspeet represented by lineup, Eight to be counsel at of criminal right by Supreme constitutional Court decided to be 12, 1967, given June is not to be retroactive States on United date, appеllate process application cases on that by on the virtue of another decision rendered the Court day. same In-Custody Identification. Process — 5. Same —Due charged robbery proc- with armed was not denied due Defendant by in-custody procedures identification which ess included the photograph photo- of defendant’s from a number of selection graphs by complaining day pointed witness the bеfore she out police lineup viewing lineup defendant eyewitnesses, defendant, two one whom identified jury presented was with sufficient credible evidence support its verdiet. Appeal—Presumption Same — Innocence —Trial—Error^- Burden of Proof. longer pre- After lawful conviction a criminal defendant is no satisfying sumed but innocent must bear the burden of Appeals the reeord on which he was eonvieted discloses reversible error.
Concurring Opinion Photographic 7. Criminal Law — Identification.
Photographic a criminal where de- identification of defendant custody physically go place is in able to defendant prohibited. where a can be should be conducted App op the Court Appeal from Recorder’s Court of Detroit, Burdick
(Benjamin D.), J. Submitted Division 1 7, March (Docket 3,354.) Detroit. No. 1968, at Decided Oc- appeal 1968. Leave to 25, tober denied 19, June Mich 763. 1969. 382 robbery
Donald Versarle Rowell was convicted of appeals. armed. Defendant Affirmed. Kelley, Attorney Frank J. Robert A. General,
Derengoski, Solicitor General, Cahalan, William L. Prosecuting Attorney, Ap- Torina, Samuel J. Chief pellate Lawyer, and K. Hackett, Barbara Assistant Prosecuting Attorney, people. for the
Mayer Mayer, appeal. & for defendant on J. On 21, October Andrews, jury convicted a Detroit rеcorder’s court of rob- *3 bery robbery bakery armed1 for the from a $125 shop. appeals upon grounds
He that the court trial denying quash erred his motions to the informa- guilty, tion and for a directed verdict of not because inadequate representation prior to trial and process because due was not accorded him in iden- procedures. tification robbery August occurred 25,1965. Defendant appeared
was arrested 5, October 1965. He in a lineup by on October 7 and was identified the man- ager bakery. At a second on October eye- 8 he was identified who was an customer holdup. manager witness to the On October 6 the pictures picked was shown five defendant’s picture group. eyewitness from Another cus- identify tomer was at a. unable to the defendant CLS 1961, § 750.529 (Stat Ann 1968 Cum Supp § 28.797), v. op the Court were shown to customers. pictures No lineup. magistrate was before the Oc- arraigned Defendant and examination for tober was fixed set 7, bond an his attorney ap- this date filed 11. On October requested only for examination pearance was to October On granted which adjournment, waived. was Defendant examination this date he was his counsel appellate claims 27 and did not consent in court on October present to waive examination. attorney or authorize his there is will be evident For which hereafter reasons defendant, claim. The unsupported no merit this No- tidal, over for was arraigned bound been having A he mute. week time stood 23, which vember his appearance. entered assigned later counsel 1966, and on that January 12, for Trial was ordered oral to March motion 17. On adjourned date was for examination. remanded March the case was This witness 9 and held March was pres- in the and cross-examination on direct testified was bound The defendant the defendant. ence of moved counsel March assigned over for trial. On at the examina- he because discovered to withdraw witness-. related to that he was tion assigned and substitute granted The motion was and March March 17 on counsel filed appearance his The motion for moved remand examinatiоn. examination was held was a second granted and April 15, again which the complaining on in defend- testified direct and cross-examination trial. ant’s over for presence. Defendant bound He was and trial was set June arraigned May 6 to a filed with complaint Due *4 coun- court new administrator, the court assigned pre- The sel, July filed an trial appearance who to adjourned August set for was viously June 15 a motion August then to 26. On August Arp Opinion op tub Court quash grounds was filed the information on the produced that the evidence two examinations support charge, pre- was insufficient to that no liminary examination was held until seven months after defendant’s con- arrest, was ducted in violation of defendant’s constitutional rights complainant’s testimony and that the resulted illegally being against obtained evidence used denying process. him, him due The was motion August opinion denying heard 19 and a written September same was filed 19. Trial was ordered for October 19 and commenced 20. Prior October opening assigned judge of trial, the trial de- quash nied oral defendant’s motion to the informa- tion. The witness, the two customers police and one officer testified. Defendant waived right remaining to cross-examine the witnesses on endorsed the information. Defendant’s motion whereupоn for a directed verdict denied, was he present appellate rested. After conviction, counsel prosecute assigned timely appeal. was foregoing proceedings The of the statement had compiled in this case after careful examination appeal. of the record on The claims supported by the record cannot be considered. Fritch 161Mich 111. requiring Defendant’s clаims consideration are substantially presented to trial those court in quash the motion to that the the information and we hold ruling of the trial court correct. delay charged proceedings The in the cannot be people. to the first The scheduled examination was waived counsel. An examination was or then transcript dered motion on of defendant. this examination reveals careful cross-examinаtion witness. Yet before the tran script assigned was filed substitute counsel moved *5 195 People op Opinion the Coubt granted re examination “to a second for and was getting suspicion [not]2 any defendant of the move hearing impartial to the fact that his due a fair and [sic] in the case and the witnesses former counsel time of the examination.” the were relatives substantially gave Again witness the testimony at examinatiоn. The record this the same any request for an defendant not show does way prejudiced what he earlier trial or in People delay. v. Donald D. Wil Court, the This (1965), App that, held 91, 2 Mich absent such liams a defendant delay deny showing, did not months a seven speedy In v. Foster trial. Court held that the ac Mich the he can claim before denial demand trial cused must speedy trial. adequate Defendant claims he that did not have opрortunity to consult with counsel before the ex- April he not Furthermore, amination show in what does prejudiced.
manner he was here He opportunity does not claim that he was denied the during He to consult with counsel the examination. testimony heard had the the position prior in a examination, at the aid his counsel in and was conducting searching cross- not claim that Nevertheless, he does examination. testimony magistrate was insufficient the the before holding him for That the testi- warrant trial. to mony com- cannot denied. The was sufficient plaining money she was robbed of witness testified that gun point identified the de- man who robbed the of a courtroom as the fendant her. any for hold- disclose basis The record does not rights ing not af- of the were that hy word the typist. It “not” was apparent inadvertently from close omitted in reading writing of motion that motion App op during preliminary proceedings him or
forded any attorneys fairly one of his did adequately protect rights. his proce-
Defendant’s claim that the identification process denied him due is without merit. The dures rule 388 *6 (1967), Wade announced in United States v. 1149), (87 18 L no 218 S Ct 2d has US Ed People (1967), application App Mich here. v. Wilson 8 Supreme Moreover, in Wade the Court case to the trial court to determine remandеd the independ- the in-court identification had whether into ent source whether its introduction evidence or hold, the did error. Thus not was harmless holds, which that such counsel has cited no case lineup procedures de- as here used denied to were process protections. his constitutional due fendant The complaining
fact that the witness selected day picture of on she identified defendant the before brought out tes- the each time she him in identified him in the court- and each time she tified room. eyewitness not customers who were The two pictures identified him at of defendant also shown persons and one of them of these did the trial. One lineup. identify All of these him the did not contradictory testimony including alleged the facts, pre- the examinations, witness at credibility jury question determina- sented tion. The verdict supported clеarly evi- the is not the verdict will overturn dence. This Court jury evidence there sufficient credible of a is (1967), People support 7 Arither v. Thomas it. App longer is no a defendant After lawful conviction presumed the then has burden innocent. He upon satisfying reviewing the record court that the error. reversible he convicted discloses which was (Stat supra; § People Ann 1948, 769.26 Fritch, CL ' n Í968] v. op tub Court §28.1096). This defendant has Rev done.
Affirmed. concurred with J.,C. Andrews,
Lesinski, (concurring). J., Initiаl identification widely effectively photograph used has been large suspect law enforcement. is When eyewitnesses display photographs to can facili police putting investigation on tate the right exonerate an innocent man. Such track. It can appropriate photographic with identification, use of necessary safeguards,1 desirable and should encouraged. States Simmons v. United (88 1247). L Ed 2d 967, 19 US S Ct large however, at not, Rowell was principal photographs were shown when Rowell was then in this case. already custody. no need show There was *7 including photograph photographs, of Rowell, a day viewed Rowell before she witness on the that lineup. in a Supreme
In Simmons the United States recognized dangers photographic in involved the proce- scrupulously if correct identification. Even рolice photo- displaying in are followed the dures mug shots) eyewitnesses graphs (frequently there may danger, the witness court, said the that is some the however and, identification make incorrect all requires of the names of a reeord be made Fairness that displayed. all photographs If at present are whenever who are larger photographs be substantially of should possible, number Copies of disрlayed in ease. photographs the this than 5 or 6 shown displayed be file so that defense photographs should added to the all counsel ean attaek and jury validity appraise can the the presentation of also be order sample. A should made of the reeord photographs photograph number of times eaeh is dis- of and the jilayed. 19Ó Árp Opinion by about, comes “the witness misidentification
initial memory image apt the retain in his is thereafter person actually photograph of rather than the the of subsequent reducing the trustworthiness seen, 384) (pp lineup 383, identification.” courtroom or stage critical is as photographic identification The danger stage, perhaps lineup The more so. the as of photographic identifica at the misidentification greater. perhaps stage great, аs the as Just is tion lineup identification facts and circumstances (United readily at trial reconstructed cannot be [87 230-232 218, [1967], Wade US States v. v. 2d and L Ed Gilbert 1926, 18 S Ct California ), 1178] [87 L Ed 2d Ct 1951, 18 388US 263 S [1967], photographic aof too facts and circumstances so lineup preceding later be cannot identification readily reconstructed. persuaded, write to reason I
I am and this is the photo- separate principle my that on views, state graphic prohibited where be identification should custody2 is the witness unless the defendant is place going physically incapacitated to a from Compare lineup can conducted. Stovall be Supreme that Court noted In Simmons the United States large photographs at the time the felons there were unknown eyewitnesses (p 384) were : shown to unnecessary suggested plaee, “In it was the first it photographic instance. for the UBI to identification this resort to felony still perpetrators A large.” were serious had been committed. DC, (CA 1968), In Smith 413 F2d the the v. United States majority for Appeals remanded the United States Court taking photographic a pretrial of evidence on the issue whether iden process and, so, tification if of the defendant violated due whether making identifications, it and in-court tainted the findings “using may appropriate, such in as the criteria announced * * * principles applying Simmons announced in * * [Wade, (1) Gilbert and *. These criteria include Stovall] necessity photographs identification; (2) to use number of procedure; *8 photographs persons in different used the identification (3) instructions, given police any, by if the information or identifying immediately prior to the to the identification.” (Emphasis supplied.) v. (87 L Ed 1967, 18 S US Ct Denno in- 1199). not so of witnesses convenience 2d police capacitated officers and the convenience people’s in interest should be subordinated jus- miscarriages avoiding misidentifications where situation And in that rare tice based thereon. photographs displayed may properly an ac- per- custody, person already accused in cused represented at the counsel is entitled to be son stage photographic the reasons identification expressed in Wade and Gilbert. they photographs
Generally police display when person photographs criminal con- with a show per- pointed accusing finger aat An viction record. eyewitness prior conviction record son with a generally “positive” identification who has made person’s bring conviction. accused will about the and, stand if he takes thе record come out His generally, will taking without himself he cannot defend may person an accused The fate of such the stand. as when, the trial months before well be decided displayed, police circum- in case, occurred this impossible ac- if not difficult which it is stances photograph curately the victim reconstruct, his solving the crime. anxious to assist United of the the observations are Pertinent Wade, Suprеme States v. in United States supra, pp 236: 224, 235, machinery “today’s involves law enforcement prose- by the accused confrontations critical proceedings pretrial the results cution and reduce
might fate the accused’s well settle * ** formality. a mere itself to trial might the accused’s determine trial which “The courtroom but may in the not be that well fate aligned pretrial with the State confrontation, at the jury, and sole against witness the accused, *9 Arp 14 190 TjEvin, unprotected against overreaching, the accused the or unintentional, intentional and with little or no appeal judgment from effective the there rendered ” by the man.’ witness—'that’s the lineup integrity jeopard- of the should The by pre-lineup photographic displays ized unless necessity there is the kind which exists when the suspect large custody, in or, is or unknown if physically incapаcitated the is from attend- ing lineup. holdings Wade’s and Gilbert’s entitl- person ing an accused the assistance of counsel at lineup the would be undermined a rule which deny pre-lineup would photographic display. him assistance of counsel at a signed opinion I have the in the Court this case disposition and in concur the of this case rather expressed than dissent because the rules in Wade and are Gilbert not effective as to confrontations which occurred at the time this ac- (Stovall supra), v. Denno, cused and also because police practice investiga- it has been to conduct suspect already custody tions even where the investigation in the manner this was conducted for long unduly impede so it that would the administra- justice tion of to make effective without advance warning standards the violation which could re- barring identifying sult in of the use witness’s Wright testimony. Compare v. United States (404 App 1256); DC 279 F2d United supra, p duty Wade, States v. It im- is our prove judicial process doing but in so we should proceed orderly in an manner.3 pletion Nevada, among of both lineup photograph, The district of the other have the district agreed upon things, lineuq5 attorney attorney’s and that “all requires presence separation procedure publiс efforts should be made to defender’s eyewitnesses defender lineup office, identification for prior Clark county, of a member to the com making prevent which, De Guvera Sure Fit Products viewing any photographs suspect prior giv- from a witness (1968), 98, ing lineup.” 4 Crim L B (CA Compare 4, 1968), Marson 408 F2d United States v. pre-Wade photographic majority that a a identification of the court concluded already custody deny did not of а defendant dissenting judge applied process. would have defendant due principle to the case there at bar as a reward Wade’s and Gilbert’s “diligence astuteness of defendant’s counsel advanc to the ing] [in contention, not obvious on its face and not a a constitutional judge dissenting single application of Wade and Gilbert.’’ The ob *10 2280): (p served express “I read Wade and Gilbert considerations sub- cаnnot stantially applicable photo- less to identification the exhibition person.” graphs than to identification exhibition of the Generally, Murray, Lineup Abroad, The Criminal at Home and see (1966); Wall, Eye Rev, p L Witness Identification Utah Criminal Cases. FIT DE v. SURE PRODUCTS GUVERA Judgment — Judgment — — Contracts Nonresi- Accelerated Partnership — dent Jurisdiction. jurisdiction judgment of defend- based on lack of Accelerated employment partnership in action to enforce ant nonresident held, products proper, contract to sell defendant’s this State either to deliver where contract did not call for defendant (CLS State materials or furnish services within this [5]). § Payment Stop Bank to 2. Libel and Order to Slander —Drawer’s on Check. held, partnership payee of a drawn Plaintiff check stop bank ordered its to be libeled when defendant third negotiated the eheck to a payment plaintiff had after party restitution. who demanded in Headnotes References for Points seq. Jur, Pleading 340 et 41 Am Am Am § [1] [2] [3] Jur, and Slander Libel Libel § seq. Jur, 232 et and Slander §