Opinion
Docket No. 9842.
Decided June 23, 1971.
Appeal from Macomb, Frank E. Jeannette, J. Submitted Division 2 May 5, 1971, at Lansing. (Docket No. 9842.) Decided June 23, 1971.
Dazell Hayward Luster was convicted of armed robbery and assault with intent to murder. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, George N. Parris, Prosecuting Attorney, Thaddeus F. Hamera, Chief Appellate Lawyer, and Stephen F. Osinski, Assistant Prosecuting Attorney, for the people.
John S. Lascoe, for defendant on appeal.
Defendant was charged with robbery armed and assault with intent to commit murder. Testimony at trial showed that, on December 12, 1968, three men entered a bar at approximately 10:30 p.m.; two of them ordered beer, the third went to the restroom. Upon the return of the man from the restroom, the three men produced pistols and threatened the bartender and one other man who was a customer in the bar. The bartender was beaten and forced to lie on his stomach; his mouth and wrists were bound with tape. Money was taken from the cash registers. While the bartender was lying bound on the floor, he was shot in the side and his personal effects were taken, after which the men fled.
MCLA § 750.529 (Stat Ann 1971 Cum Supp § 28.797).
MCLA § 750.83 (Stat Ann 1962 Rev § 28.278).
Evidence presented at trial included an identification by the bartender and a fingerprint of the defendant, taken from one of the beer bottles from the area of the bar where the three men had been sitting. Defense counsel challenged the in-court identification and a separate evidentiary hearing was held.
The separate hearing revealed that the defendant had been placed in a one-man "show-up" at the police station, but had not been told that a "show-up" was being held, nor was he aware of the same, as the witness was concealed behind a one-way mirror. The defendant was not advised of his right to have an attorney present at the "show-up". At the conclusion of the separate hearing, the trial court ruled that the questioned witness had an independent basis for his in-court identification and denied the defense's motion to quash the identification.
Defendant was convicted by the jury on both counts charged in the information and appeals upon leave granted by this Court.
Defendant first contends that the complaint and warrant issued upon the complaint of a police detective, without examination of the complaining witness, were fatally defective.
The record shows that defense counsel attacked both of the incriminating aspects of the evidence which linked the defendant to the commission of the crime: the identification by the complaining witness, and the fingerprint found on the beer bottle at the scene of the crime. Further, the record indicates that the tactic used by the defendant in his endeavor to exclude the fingerprint evidence was based on an argument which attempted to utilize the cases of Davies v. Mississippi (1969), 394 U.S. 721 ( 89 S Ct 1394, 22 L Ed 2d 676), and Giordenello v. United States (1958), 357 U.S. 480 ( 78 S Ct 1245, 2 L Ed 2d 1503). In order to bring the rationale of those cases into play, the defendant apparently believed it was necessary to attack the warrant as being fatally insufficient. The substantive issue raised as to the claimed defectiveness of the warrant and complaint has been clearly settled against the arguments made by the defendant. In People v. Andriacci (1968), 11 Mich. App. 482, this Court approved the practice of issuing a warrant based on the information and belief of a police officer having responsibility for a particular case. Standard procedure for obtaining a warrant was followed in the instant case. This Court does not find any prejudice resulted to the defendant.
Finally, the defendant contends that the confrontation was illegal, because conducted without defense counsel present, and that the result was a prejudicial denial of defendant's rights.
The case of People v. Hutton (1970), 21 Mich. App. 312, provides a thorough analysis of the applicable Federal law and Michigan cases dealing with the subject of improper identification techniques and an accused's constitutional protection. We restate the propositions set forth in Hutton, supra, as follows:
(1) Once a claim of an illegal confrontation is raised, an evidentiary hearing should be held outside the presence of the jury to determine the merits of that claim. Even if the confrontation was improperly held, if the prosecution can establish by clear and convincing evidence that there are sources of identification independent of the illegal confrontation, an in-court identification may still be admissible. Whether there is such an independent basis is a question for the court.
(2) Factors to be used by the court in determining the admissibility of in-court identification are: prior opportunity to observe the criminal act, the existence of any discrepancy between any pre-trial description and the actual appearance of the defendant, any identification of another person before confrontation, failure to identify defendant on a prior occasion, the lapse of time between the crime and the confrontation for identification purposes, any uncertainty in the witness's response as to whether he could identify defendant at trial had he not seen him at the deficient pre-trial confrontation, and all other evidence which supports or undermines the assertion of an in-court identification purged of the primary taint of an illegal identification confrontation.
(3) Where the admission of identification testimony is challenged on appeal, the appellate court must reach one of three conclusions: affirm if the record shows by clear and convincing evidence that the in-court identification was not tainted by the illegal confrontation or if the record shows beyond a reasonable doubt that the admission of the prior identification was harmless; reverse if the record shows the in-court identification was tainted and that it does not show beyond a reasonable doubt that the error was harmless; and remand for further evidentiary hearing if the record does not permit an informed judgment.
See also People v. Yopp (1970), 25 Mich. App. 69.
Hutton, supra, also holds that, once a person has been arrested and informed of his rights and taken into custody, he is entitled to counsel during any identification confrontation. The record shows that this defendant was not advised of his right to counsel at the showup, nor was he told that a showup was being conducted. A separate hearing was conducted on the queston of the identification and the showup. The trial court ruled that "identification was not influenced by what happened prior to the show-up". This ruling was based on People v. Floyd (1968), 15 Mich. App. 284, which dealt with the use of showups. The rationale of the court's ruling in the instant case was that the identification procedure was not suggestive.
Under Hutton, supra, this Court should affirm if the record is complete enough to allow an "informed judgment" on the questioned identification. We find that the identification was not tainted by the illegal confrontation and the record shows by "clear and convincing evidence" that the in-court identification had a basis independent to the illegal confrontation.
A review of the witness's testimony shows that the defendant had attracted his attention in the bar just prior to the commission of the crime. The witness had ample opportunity to observe the defendant singly and identified him by means of his movement, his size, and his "large hands". He was positive of his identification in the bar and at trial. The witness's positive identification, coupled with the fact that the defendant's fingerprint was found on a beer bottle at the scene of the crime, and the fact that the defendant's car was noticed at the scene of the crime, a factor which led to his arrest, all require affirmance of this conviction.
The separate record shows that the in-court identification was free of taint from the illegal confrontation. The finding of the trial court that the challenged witness was possessed of a sufficient independent basis for identification of the defendant is not reversible error.
Affirmed.
All concurred.