concluding that the defendant failed to show that a lineup including more than one defendant was unduly suggestiveSummary of this case from People v. White
Docket No. 9008.
Decided June 25, 1971.
Appeal from Recorder's Court of Detroit, Robert E. DeMascio, J. Submitted Division 1 May 25, 1971, at Grand Rapids. (Docket No. 9008.) Decided June 25, 1971.
Walter Lee Curtis was convicted of armed robbery. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Robert A. Reuther, Assistant Prosecuting Attorney, for the people.
Daniel Siefer, for defendant on appeal.
Before: FITZGERALD, P.J., and R.B. BURNS and HOLBROOK, JJ.
The defendant and two codefendants were convicted after a jury trial of robbery armed. MCLA § 750.529 (Stat Ann 1971 Cum Supp § 28.797). A lineup was held on October 4, 1968, the day after the robbery occurred. The lineup contained the three codefendants and four other men. All were Negroes. An attorney was present representing the rights of the codefendants. There was no request in the trial court for an evidentiary hearing on the fairness of the lineup.
On appeal the question is whether considering the totality of the circumstances was the showup in which the defendant was identified unduly suggestive and in violation of his constitutional right to due process of law.
When counsel is present at a showup the burden is on the defendant to allege and factually support a claim that the confrontation was unnecessarily suggestive. See People v. Young (1970), 21 Mich. App. 684. The defendant has not carried that burden.
Additionally, there was overwhelming evidence of the defendant's guilt apart from the identifications at the lineup. People v. Childers (1969), 20 Mich. App. 639. The question sought to be reviewed is so unsubstantial as to require no argument or formal submission.
Motion to affirm is granted.