PEOPLE v WRIGHT; PEOPLE v HAYDEN
Docket Nos. 21809-10, 21104-05
Court of Appeals of Michigan
September 7, 1976
71 Mich App 40
Before: ALLEN, P. J., and D. E. HOLBROOK, JR., and E. H. PAPP, JJ.
Appeal from Genesee, Donald R. Freeman, J. Submitted June 2, 1976, at Lansing. Decided September 7, 1976.
1. WITNESSES—CRIMINAL LAW—EXPERT WITNESSES—SUGGESTIVE POLICE TECHNIQUES—IDENTIFICATION EVIDENCE—ABUSE OF DISCRETION.
A trial judge‘s refusal to allow a psychiatrist to take the witness stand for the purpose of testifying about how a complainant‘s identification of the defendants had been influenced by allegedly suggestive police techniques in the identification procedure was not an abuse of discretion where the psychiatrist had never examined the complainant.
2. RAPE—ELEMENTS—PENETRATION—INSTRUCTIONS TO JURY—APPEAL AND ERROR.
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; where this portion of the instructions on a rape charge was omitted, convictions for rape must be reversed and review is not precluded by the defendants’ failure to object to the instructions as given.
3. APPEAL AND ERROR—CRIMINAL LAW—INSTRUCTIONS TO JURY—FAILURE TO OBJECT TO—OMISSION OF ESSENTIAL ELEMENTS—COURT RULES.
Review of an improper instruction to the jury is not precluded by a defendant‘s failure to object where there has been an omission of an instruction on an essential element of the offense charged (
4. CRIMINAL LAW—PHOTOGRAPHIC IDENTIFICATION—SUSPECT IN CUSTODY—LINEUP—RIGHT TO COUNSEL.
A photographic identification should not be attempted where a
5. CRIMINAL LAW—IDENTIFICATION—ACTUAL SUSPECTS—MERE SUSPICION—READILY AVAILABLE FOR LINEUP.
A defendant must have been an actual suspect, which requires more than a mere suspicion of guilt, as well as readily available for a formal lineup before the protective rules for identification procedures can be invoked.
6. CRIMINAL LAW—RIGHT TO COUNSEL—CONSTITUTIONAL LAW—PHOTOGRAPHIC DISPLAY—PRE-CUSTODY IDENTIFICATION.
There is no right to counsel at a pre-custody photographic display.
7. WITNESSES—CRIMINAL LAW—PHOTOGRAPHIC IDENTIFICATION—MANNER OF PRESENTATION.
Testimony about photographic identification was properly admitted at trial where the record shows that the identification process was properly conducted.
8. CRIMINAL LAW—IDENTIFICATION PROCEDURES—SUSPECTS—ESTABLISHED PROTECTION.
It was improper for the police to stage an “accidental” confrontation between a complaining witness and two suspects for purposes of identification of the suspects where the witness had already tentatively identified the suspects and these persons were no longer under mere suspicion but were actual suspects; as such they were entitled to the protective rules for identification procedures.
9. CRIMINAL LAW—IDENTIFICATION PROCEDURES—STAGED CONFRONTATION—SUGGESTIVENESS.
It was error to admit testimony about a complaining witness‘s identification of the defendants at an improper staged confrontation between the witness and the defendants after the defendants had become suspects even though the procedure at the confrontation was not improperly suggestive.
10. WITNESSES—CRIMINAL LAW—IN-COURT IDENTIFICATION—OUT-OF-COURT IDENTIFICATION—INDEPENDENT BASIS.
A witness may not be allowed to identify a defendant in court if the identification is the product of an improper out-of-court procedure; however, the in-court identification may be allowed if it has a basis independent of the out-of-court identification.
A trial judge‘s finding of an independent basis for a complaining witness‘s in-court identification of the defendants was not clearly erroneous where the witness had had extensive opportunities to observe the defendants and the witness had been consistent and certain in her identification, and where the record shows that the out-of-court identifications were not improperly suggestive.
12. CRIMINAL LAW—EVIDENCE—IDENTIFICATION TESTIMONY—HARMLESS ERROR.
The admission of identification testimony concerning an improper, staged confrontation between the complaining witness and the defendants where the defendants were the primary suspects and were available for a formal lineup was erroneous, but was harmless error and does not require reversal where there was other strong identification testimony.
DISSENT BY E. H. PAPP, J.
13. CRIMINAL LAW—EVIDENCE—IDENTIFICATION TESTIMONY—OUT-OF-COURT IDENTIFICATION—TOTALITY OF CIRCUMSTANCES.
A determination on the admissibility of testimony regarding a pretrial identification requires that the totality of circumstances be examined; this totality includes: (1) the suggestive aspects of the procedure itself; (2) the justification for the procedure used; and (3) the reliability of resulting identification.
14. CRIMINAL LAW—EVIDENCE—OUT-OF-COURT IDENTIFICATION—TESTING FOR RELIABILITY—FACTOR.
The factors used for testing the reliability of an out-of-court identification of a defendant include: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness‘s degree of attention; (3) the accuracy of the witness‘s prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation.
15. CRIMINAL LAW—EVIDENCE—IDENTIFICATION TESTIMONY—IMPROPER IDENTIFICATION PROCEDURES—SUGGESTIVENESS.
The admission of testimony regarding a complaining witness‘s identification of the defendants at an improper, staged confrontation between the defendants and the witness cannot be viewed as harmless error and the convictions should be re-
REFERENCES FOR POINTS IN HEADNOTES
[1] 31 Am Jur 2d, Expert and Opinion Evidence § 181.
[2] 65 Am Jur 2d, Rape § 3.
[3] 75 Am Jur 2d, Trial §§ 713, 715, 906.
[4—15] 21 Am Jur 2d, Criminal Law §§ 334, 341, 368, 369.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert F. Leonard, Prosecuting Attorney and Donald A. Kuebler, Chief, Appellate Division, for the people.
Wistrand, Wistrand and Brendle, for defendant Wright.
Shaheen & Shaheen, for defendant Hayden.
ALLEN, P. J. The defendants were convicted of attempted murder.
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 police knew that the defendants would be in court the next day. They asked the complainant to come to the courthouse (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
A direct confrontation was arranged by waiting for the defendants by the courthouse 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 Wade1 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 NW2d 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 NW2d 677 (1974). Since the
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 lineup 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 US 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 NW2d 461 (1973), People v Jackson, 391 Mich 323; 217 NW2d 22 (1974).
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 NW2d 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 NW2d 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 NW2d 340 (1975). Therefore, testimony about the photographic identification was properly admitted at trial. Contrast Gilbert v California, 388 US 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 analagous 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 confrontations4 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 complainant had already tentatively identified the defendants at the photographic display. It is clear that they then became “suspects“, and consequently entitled to the protections of People v Anderson, supra, People v Jackson, supra.
Since the parking lot confrontation should never have occurred at all, the right to counsel issue is not properly before us.
Our third inquiry, viz.: an evaluation of the suggestiveness of the parking lot procedure, leads us to conclude that the procedure was not improperly suggestive. We accept the complainant‘s testimony that she was unaware of the real purpose of her visit to the parking lot; thus, we are impressed by the spontaneity and definiteness of the identification which followed.
But that confrontation should never have occur-
The Courtroom Identification
A witness may not identify a defendant in court if the identification is the product of an improper out-of-court procedure. But the testimony may be admitted if it has a basis independent of the out-of-court identification. People v Anderson, supra, US v Wade, supra.
At the Wade hearing in the present case, the trial judge expressly found an independent basis for the in-court identification. Given the complainant‘s extensive opportunities to observe the defendants, the consistency and certainty of her identification, and our conclusion that neither of the out-of-court identifications were improperly suggestive, we hold that the finding of an independent basis was not clearly erroneous.6
Conclusion
Unlike several other cases, the finding of an independent basis for the in-court identification does not resolve this appeal because the witnesses were also allowed to testify about the parking lot confrontation. Contrast People v Anderson, supra. We have already held that admission of that testimony was error, but we also believe that, given the strength of the other identification testimony, the error was harmless and does not require rever-
For the reasons stated, the convictions for rape are reversed. The convictions for attempted murder and larceny from a person are affirmed.
D. E. HOLBROOK, JR., J., concurred.
PEOPLE v WRIGHT; PEOPLE v HAYDEN
E. H. PAPP, J. (dissenting).
Assuming that defendants were not deprived of their constitutional rights in either the method of presentation or by the photographs themselves, the victim‘s identification as the result of that presentation was tentative at best. She was 85% sure of one of the defendants and much less sure of the other. It was because of this lack of strength in the first identification that the subsequent incident in the parking lot occurred.
On the second day following the rape, the victim was called to the sheriff‘s department on the pretext of having more photographs of her injuries and a set of fingerprints taken. The sheriff‘s detectives’ real purpose in summoning her to the station was to stage a confrontation with defendants who were then on trial for another rape in the
No confrontation could be staged in the morning. Although all that she had been requested to do had been completed early in the morning the victim was asked to return to the department after she and her mother took a short shopping trip. When the victim returned she was escorted to the parking lot to view colors of cars in an attempt to fix the color of the car in which she had been abducted. One of the three cars pointed out before lunch was that of defendant Wright. The detective then treated the victim and her mother to lunch.
After lunch, one of the detectives waited with the victim at the rear of the courthouse to again view cars as they drove into the parking lot. This was done even though the victim repeatedly stated that she could not identify the color of the car. Within a short time defendants drove by. The victim did not respond to the officer‘s question of whether that was the color of the car but asked to take a closer look at the occupants.
She was rushed into the courthouse and stood before the elevators which the detective knew defendants would be taking as they returned to court. She made some type of identification as defendants approached the elevator and was then pushed into the elevator by the detective to ride the five floors up with the defendants. On the fifth floor her identification was positive and emphatic.
I agree with the majority that this procedure should not have occurred. The detectives knew defendants were “readily available” for a lineup and that they had counsel to represent them in the other rape prosecution. They must also have known that such a charade would violate defendants’ rights. This practice was unconscionable and should not be condoned by the Court.
In determining the admissibility of testimony concerning this pretrial identification the “totality of the circumstances” must be examined. This totality includes (a) the suggestive aspects of the procedure itself, (b) the justification for the procedure used and (c) the reliability of the resulting identification. United States ex rel Kirby v Sturges, 510 F2d 397 (CA 7, 1975), cert den, 421 US 1016; 95 S Ct 2424; 44 L Ed 2d 685 (1975). Reliability is tested by the factors mentioned in Neil v Biggers, 409 US 188; 93 S Ct 375; 34 L Ed 2d 401 (1972).1
The majority admits that the procedure should never have occurred. There is agreement then that there was no justification for not holding a corporeal lineup, the preferred method of testing identifications. I would also hold that the show-up was suggestive. The victim must have felt that the police believed these individuals were “the ones“. She had tentatively selected their photographs the day before; been shown their car that morning; and no reasonable excuse existed for standing in
“The confrontation was therefore defective for both of the reasons stated in Biggers; the show-up increased the likelihood of misidentification, and that increased risk of error was gratuitous.” United States ex rel Kirby v Sturges, supra at 404.
See People v Yacks, 49 Mich App 444, 449; 212 NW2d 249 (1973).
Applying the reliability standards of Biggers does nothing to dispel the conclusion that this testimony was erroneously admitted. Although the victim was with her attackers for a significant period of time, the night was dark and she was forced to look straight ahead while in the car. She was severely beaten and also expressed the belief that she had been drugged. When she was found the morning after the attack she was incoherent and her thinking was “fuzzy“.
Before viewing the photographic display, she gave three descriptions of her attackers to the sheriff‘s department. Each of these descriptions gave various heights and weights, none of which approached defendants’ actual height of 6‘5” and 6‘1“. There were also discrepancies in her descriptions of other features of the defendants and the car they were driving.
Based on this record I cannot join in the conclusion that introduction of this testimony was harmless beyond a reasonable doubt. Considerable time was devoted to repeating this testimony at trial. There was no real corroborating evidence connecting defendants with this crime. The strong identifi-
These convictions should be reversed.