No. 7 April Term 1972, Docket No. 53,109.
Decided November 29, 1972.
Appeal from Court of Appeals, Division 1, Danhof, P.J., and V.J. Brennan and J.J. Kelley, Jr., JJ., affirming Recorder's Court of Detroit, Geraldine Bledsoe Ford, J. Submitted April 5, 1972. (No. 7 April Term 1972, Docket No. 53,109.) Decided November 29, 1972.
27 Mich. App. 422 reversed.
Ralph Poe was convicted of armed robbery. Defendant appealed to the Court of Appeals. Affirmed. Defendant appeals. Reversed and remanded for new trial.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Thomas R. Lewis, Assistant Prosecuting Attorney, for the people.
Philip A. Gillis, for defendant.
Statement of Facts
On the evening of October 13, 1966, there was an armed robbery of a Wrigley's Supermarket in Detroit. Pringle Johnson, the assistant manager, was forced at gunpoint to give the man about $350. A cashier, Fannie Evans, was under the impression the robber wanted to cash a check and spoke to him. Another employee, Douglas Ballard, was about to go on a break when the robber told him he had better not leave. Gary Harbin, an employee, and Mitchell Matthews, a customer, observed the robber from a distance.
After the robber left, Johnson summoned the police. Officer Jones, one of the first officers to respond to the call, asked for a description of the robber. He relied on Johnson for the bulk of this identification but his report was also based on the views of the other witnesses. According to Jones' report and testimony, the robber was described as "a Negro Male, thirty to thirty-five, five foot five, slim build, with a heavy beard and a medium mustache; the man was wearing a brown squashed down hat, a brown Italian knit sweater and green pants. He [Johnson] stated that this man also had a limp in his left leg and that his mouth was distorted when he talks." A teletype based on Jones' write-up altered 5'5" to 5'8", "heavy beard" to "needed shave," and "limp in left leg" to "limp in right leg." See Exhibit A p 621.
Several files of mug shots were shown to the witnesses that evening by police officers other than Jones. Matthews and Harbin picked out a picture of Poe. Johnson and Evans picked out a picture of Poe and another man, "Two-zero," but indicated that Poe came the closest. Ballard picked out two pictures. The next morning, pictures were again shown to Johnson, Evans and Matthews. The picture of Poe was again chosen as being the closest to the robber.
The police did not want to request a warrant based solely on the picture identification. As one officer explained, the other man, "Two-zero," showed a background of 15 armed robberies and Poe had not been known to be involved in any armed robberies. Every witness, except Ballard, was asked to be present at a lineup. The men participating in the lineups were of various ages. While Poe was in each lineup, "Two-zero" did not participate in any of them. According to the notations on the showup sheets, Johnson and Evans "positively" identified Poe. Harbin stated that although Poe looked like the robber, he could not testify to that in court. Matthews identified another man.
Poe was arrested and charged with armed robbery. A jury trial was held in Recorder's Court. Poe was represented by appointed counsel, Philip A. Gillis. Since Poe maintained that he was innocent, the whole trial rested on identification of him as the robber. Johnson testified the robber had a heavy mustache, was 5'8" or 5'9" tall, wore a suede-type jacket, and limped only once with his right leg. Other witnesses also disputed the description as testified to by Officer Jones. Poe was 32 years of age at the time of the trial and 5'9" tall. He showed no limp and, when testifying, showed no distortion of his mouth.
The jury found Poe guilty of robbery armed. Upon appeal to the Court of Appeals, that Court first remanded the case to recorder's court "for post-conviction proceedings." On the hearing on a motion for retrial, the trial court considered only the issue of whether the court-appointed lawyer, being inadequately paid, had inadequately represented his client. The trial court denied the motion for retrial on the ground that Mr. Gillis had performed an admirable job.
Appeal was again taken to the Court of Appeals. The trial court's decision was affirmed. ( 27 Mich. App. 422.) This Court granted leave, limited to the issue of the admissibility of a police officer's testimony pertaining to identification of defendant made by witnesses at showups and handwritten notations pertaining to lineup identification. ( 384 Mich. 799.) The order was later amended to include the issue of whether Officer Jones should have been recalled for impeachment purposes with respect to the testimony of an identifying res gestae witness. ( 384 Mich. 800.)
As at trial, on this appeal the whole problem in this case is one of identification. Four interrelated issues are involved: (1) discrepancies in the testimony of witnesses; (2) pretrial identification procedure; (3) the admissibility of police notes entitled "Record of Showup" and their submission to the jury during its deliberation; and (4) the court's refusal to recall the investigating officer who obtained the descriptions at the scene.
(1) Discrepancies in Testimony
Officer Jones' report describing the robber, the testimony of the store witnesses, and the alterations in the police bulletin by interlineations to make it conform with the description given by the witnesses, and other discrepancies, would ordinarily be proper matters for jury resolution. The officer's original notes from which he made his police report were never used by him to refresh his memory or admitted as past recollection recorded. We shall have more to say of them under (4).
(2) Pretrial Identification
The witnesses were shown a number of police mug shots the night of the holdup and again the next morning. Defendant's photo was in both groups. This would be within standard and proper identification procedures. However, two of the witnesses recalled having been shown photos on the day of the showup and Fannie Evans stated that when she went to the police station for the showup, she was permitted to see defendant before the showup. "I really didn't look at the others [in the showup] because I saw him [defendant] before I even got there and I recognized him." When Gary Harbin viewed defendant at a showup, men used for it, besides the 32-year old defendant, were two teenagers and a 58-year old man.
(3) Admissibility of Police Notes
The defense elicited testimony by the police to show that although Matthews and Harbin swore at trial that Poe was the robber, they did not make such positive identifications during the lineups. The lineup sheets with the remarks made by these two witnesses recorded thereon were submitted into evidence to make this point. The use of these documents to refresh the witnesses' memory and to test their reliability was proper. See, generally, 2 Gillespie, Michigan Criminal Law Procedure (2d ed), § 598, p 775.
The defense objected, however, when the prosecution undertook to show by police testimony that both Johnson and Evans had made a "positive identification" of Poe. The sheets describing those two lineups were also admitted into evidence over defense counsel objection. According to the notations on these lineup sheets, Mrs. Evans, when identifying Poe, said: "That's him with the trench coat on." Mr. Johnson was quoted as saying: "That's him, that's him."
The defense contended that, although the lineup sheets could be admitted to impeach the testimony of Matthews and Harbin, the sheets involving the lineups in which Evans and Johnson were present could not be admitted since they did not fall into any exception to the hearsay rule. The quotations only served to show prior consistent statements. The two witnesses were never impeached on their lineup identifications of Poe.
The jury examined these sheets during the trial and again during their deliberations.
The courts below and the prosecutor rely upon the holding in People v Londe, 230 Mich. 484, 487 (1925):
"The third question presented by the record relates to the ruling of the court in permitting witnesses Mrs. Evans and John Kay to testify that they identified the defendant in the show-up room at police headquarters, and in permitting John Donovan, a police officer, to testify as to what took place at the time of the identification. It was proper for the witnesses who had seen the men at the time of the robbery to testify that they later identified the defendant as one of them. And it was equally proper for the officer to testify under what circumstances the identification was made. That is as far as the witnesses were allowed to go in giving their testimony." (Emphasis added.)
Londe restricts the police officer's testimony to "what took place" and under "what circumstances the identification was made" and not, as here, the nature or quality of the identification.
In People v Mead, 50 Mich. 228 (1883), a woman who was sleeping in the "burgled" house testified that she saw the burglar plainly enough to recognize him afterwards and that two days later, while in her husband's company, saw defendant and told her husband she believed defendant to be the burglar. The husband was then put on the stand and related his wife's observances and recognition. Justice COOLEY, speaking for the Court, observed (p 230):
"The question was then put in this form: Did she recognize anybody? This was objected to, but allowed, and the witness answered: She did. The further question was then asked: Whom did she recognize? And the answer given was: This defendant. She recognized him as being the man that was in her bedroom on the first of November [the time of the burglary]. I told her to be sure, and she says, I am sure.
"It will be observed that in this the witness went altogether beyond the question, and beyond any permission that could be implied from the ruling of the judge. The question was simple: Whom did she recognize? It was also proper enough to put it, as introductory to what the witness himself had to say respecting his own subsequent investigations. But the witness, not content with giving a simple answer to it, added what in effect was a statement that his wife told him she recognized the respondent as the burglar. The statement was hearsay, and it was likely to be exceedingly mischievous, for much depended in the case upon this recognition." (Emphasis added.)
The police officer's testimony and the handwritten notations purporting to be the statements of Evans and Johnson recorded on these sheets were hearsay and not admissible under any rules of evidence.
(4) Refusal to Recall Officer Jones
Officer Jones did not have the handwritten notes he had made on the night of the robbery with him at trial. After testifying, he was instructed to go home to find them. Meanwhile, Ballard, previously waived as a res gestae witness because of the prosecution's inability to locate him, was found and appeared in court. He was the first witness to say that the robber had only faked a limp and that the man had fled by a different route than that previously testified to. Ballard testified that he informed the police that the robber "kind of slipped and he jumped out of that limp; and he walked on out the door, walked across the street over to the empty parking lot." Defense counsel requested that Officer Jones be recalled. The trial court refused on the basis that defense counsel had already thoroughly cross-examined Officer Jones.
Ordinarily we would agree with the Court of Appeals that this was a matter for the trial court's discretion. In this case, however, we have identification procedures prior to trial that are at least open to the suspicion of unfairness, error in the trial in the admission of hearsay testimony that could tend only to reinforce identification and, finally, a refusal by the trial judge to allow cross-examination of the police officer as to his original notes taken at the scene immediately after the robbery. In People v Rosborough, 387 Mich. 183 (1972), we recently discussed the problem of police testimony and records. We cannot stress too strongly the importance of retention by the police of their original notes and records, especially those made at the scene, as in this case. Appended hereto is Exhibit A, the police bulletin. The alterations in the description of the robber can readily be seen. Under the circumstances of this case, it was vital that Officer Jones be recalled for cross-examination. The trial judge erred in refusing to allow this.
Remanded to the trial court for new trial.
T.M. KAVANAGH, C.J., and T.E. BRENNAN, T.G. KAVANAGH, SWAINSON, and WILLIAMS, JJ., concurred with ADAMS, J.
I concur with the holdings of my Brother ADAMS and generally with his very pertinent observations.
In particular I agree with his observation: "In this case, however, we have identification procedures prior to trial that are at least open to suspicion of unfairness * * *." (Supra, p 619.) I would go further. This case antedates United States v Wade, 388 U.S. 218; 87 S Ct 1926; 18 L Ed 2d 1149 (1967) which has only prospective application under Stovall v Denno, 388 U.S. 293; 87 S Ct 1967; 18 L Ed 2d 1199 (1967). Nevertheless, this case illustrates why the Sixth Amendment's right to counsel and a meaningful confrontation at trial has resulted in the requirement of presence of counsel at pretrial identification procedures. My Brother ADAMS itemizes several of the problems in this case which I shall repeat before commenting on them:
"However, two of the witnesses recalled having been shown photos on the day of the showup and Fannie Evans stated that when she went to the police station for the showup, she was permitted to see defendant before the showup. `I really didn't look at the others [in the showup] because I saw him [defendant] before I even got there and I recognized him.' When Gary Harbin viewed defendant at a showup, men used for it, besides the 32-year old defendant, were two teenagers and a 58-year old man." (Supra, p 616.)
The first point I wish to make is to emphasize that had the two witnesses not testified to having seen the photos on the day of the showup and just prior thereto; had Fannie Evans not stated she was permitted to see the defendant before the showup; and had the information not come to light as to the farcical form of showup employed for Gary Harbin, the defendant's case would have been immeasurably weakened. However, had defendant had counsel on these occasions, counsel presumably would have become aware of these things for trial use, which is one of the reasons Wade requires counsel at that time.
The second point is that while this case antedates Wade and Wade is prospective only, the companion case to Wade, Stovall v Denno, supra, is applicable on the facts and is also retrospective. Stovall holds that whether or not counsel is present for pretrial identification procedures, if the identification procedures employed are "unnecessarily suggestive and conducive to irreparable mistaken identification," then there has been a failure of due process and a " Wade hearing" is necessary to determine whether the identifying witness has an independent basis for testimony for "in-court" identification of the accused. Since this case involves a pre-indictment identification procedure, Kirby v Illinois, 406 U.S. 682; 92 S Ct 1877; 32 L Ed 2d 411 (1972) does not require a per se exclusion of the out-of-court identification, but such testimony must be qualified under the normal evidentiary rules.
While this matter was not properly raised on appeal, since in any event the order in this case is to remand for new trial, these points should be considered as appropriate at such a trial.
This case strongly highlights a psychological and legal problem deserving the most serious consideration of the bench and bar. In reading the record and my Brother ADAM'S opinion, one cannot escape the emphasis on what the witnesses at pretrial identification said and did. Such matters as whether or not an identifying witness did or did not identify the defendant; whether the identifying witness identified another person; whether the identification was "positive" or "hesitant"; what the identifying witness said; what the police records of the lineup do or do not show; etc., all are heavily stressed. And no wonder, because punishment or discharge depends on whether the jury finds beyond a reasonable doubt that the witnesses identified the "right" man.
The defense, therefore, wants to show such things as that "although Matthews and Harbin swore at trial that Poe was the robber, they did not make such positive identifications during the lineups." And the prosecution wants to include that "Mrs. Evans, when identifying Poe, said: `That's him with the trench coat on'", and that "Mr. Johnson was quoted as saying: `That's him, that's him.'", (supra, p 617) although "Johnson and Evans picked out a picture of Poe and another man, `Two-zero,' but indicated that Poe came closest."
From this emphasis on what happened and what was said at the pretrial identification procedures it is apparent that both parties thought the jury would be influenced by identifying witness' impressions at the time nearest the crime. This actually is logically and psychologically sound. An important consideration underlining my concurrence in this case is the proposition that, all things being equal, identifications made prior to trial are inherently more reliable than those made "in court" ("That's the man"). Wigmore has characterized in-court identifications as "violently suggestive." Wigmore, Evidence — Corroboration by Witness' Identification of an Accused on Arrest, 25 Ill L Rev 550, 550-551 (1931); see also 4 Wigmore, Evidence (3d ed), § 1130; Comment, Prior Identification Evidence the Hearsay Objection, 30 Rocky Mt L Rev 332 (1958); Wall, Eye-Witness Identification in Criminal Cases, pp 26-27, 181 fn 2, and Chapter V (1971, 2d printing). However, in Gilbert v California, 388 U.S. 263; 87 S Ct 1951; 18 L Ed 2d 1178 (1967), the United States Supreme Court made testimony as to pretrial identification procedures subject to per se exclusion if the defendant was without counsel. Kirby, supra, restricted this per se exclusion to post-"indictment" situations. This writer believes that the per se exclusionary rule should be eliminated entirely and an appropriate rule of special qualification of such evidence on the basis of the fairness of the procedures substituted.
One final observation: the photographic procedures resulted in Johnson, Evans and Ballard originally picking out not one, but two pictures, Poe and "Two-zero," as the probable criminal, although "Poe came the closest." The second time around Johnson, Evans and Matthew picked Poe "as being closest to the robber" (this writer's emphasis) (p 614). In the actual lineup with Poe in it but "Two-zero" not in it "[a]ccording to the notations on the showup sheets, Johnson and Evans `positively' identified Poe. Harbin stated that although Poe looked like the robber, he could not testify to that in court. Matthews identified another man." Under these circumstances I would hold in a future case that the failure to put a second person such as "Two-zero" in the lineup would constitute lack of due process under Stovall, unless the police were able to satisfy the trial judge that "Two-zero" was unavailable after diligent, honest effort to find him, or other circumstances indicate that "Two-zero" is not connected with the crime.
BLACK, J., did not sit in this case.