185 N.W.2d 633 | Mich. Ct. App. | 1971
PEOPLE
v.
SCHUMACHER
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, George N. Parris, Prosecuting Attorney, Thaddeus F. Hamera, Chief Appellate Lawyer, and Don L. Milbourn, Assistant Prosecuting Attorney, for the people.
Robert T. Wall, for defendant on appeal.
Before: QUINN, P.J., and BRONSON and O'HARA,[*] JJ.
Remanded to trial court with instructions by Supreme Court April 20, 1971. 384 Mich. 831.
QUINN, P.J.
June 11, 1969, a jury pronounced defendant guilty of assault with a deadly weapon.[1] He was sentenced and he appeals on the basis of unfair and prejudicial identification procedures and improper statements by police officers relating defendant to prior minor contacts with the police.
With respect to the latter assertion of error, it was not preserved for review, since there was no objection at trial. People v. Ridley (1967), 8 Mich. App. 549.
*596 The identification procedures complained of involve four or five photographs shown to the complaining witness for identification purposes, two of which were of defendant. The other procedure was a single confrontation, complaining witness viewing defendant alone through a one-way mirror. Defendant was not represented by counsel at the latter identification nor does the record disclose a waiver of his right to counsel. Defendant made no objection at trial to the identification procedures now urged as basis for appellate relief. However, failure to object at trial does not preclude appellate review of an alleged violation of constitutional rights. People v. Limon (1966), 4 Mich. App. 440. Failure to object does eliminate the necessity for the prosecuting attorney to establish by clear and convincing evidence that the in-court identification was based on observation of the suspect not connected with the identification procedures under attack. People v. Hutton (1970), 21 Mich. App. 312, 325.
We may assume that the photographic identification does not meet the standards of Simmons v. United States (1968), 390 U.S. 377 (88 S. Ct. 967, 19 L. Ed. 2d 1247), and that the single confrontation does not meet the requirements of Stovall v. Denno (1967), 388 U.S. 293 (87 S. Ct. 1967, 18 L. Ed. 2d 1199). The failure of the record to disclose a waiver of right to counsel at lineup violates United States v. Wade (1967), 388 U.S. 218 (87 S. Ct. 1926, 18 L. Ed. 2d 1149). Singly or combined these errors do not constitute basis for reversal on this record.
Immediately after the offense and prior to any identification, the complaining witness described her assailant as wearing a tan jacket and walking with a slight limp. Defendant admits being in the area of the assault the night it occurred, that he was wearing a tan jacket and that he walks with a limp. The *597 record demonstrates in-court identification from observation not connected with the erroneous procedures asserted as grounds for reversal.
Affirmed.
All concurred.
NOTES
[*] Former Supreme Court Justice, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.
[1] MCLA § 750.82 (Stat Ann 1962 Rev § 28.277).
