People v. Wilki

132 Mich. App. 140 (1984) 347 N.W.2d 735

PEOPLE
v.
WILKI

Docket No. 66825.

Michigan Court of Appeals.

Decided February 7, 1984.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Edward J. Grant, Prosecuting Attorney, and John L. Wildeboer, Chief Appellate Attorney, for the people.

Lester O. Pollak, for defendant on appeal.

Before: R.M. MAHER, P.J., and D.E. HOLBROOK, JR., and P.J. MARUTIAK,^[*] JJ.

PER CURIAM.

Defendant was charged with armed robbery, MCL 750.529; MSA 28.797, felony-firearm, MCL 750.227b; MSA 28.424(2), and in a supplemental information with being a third-felony offender, MCL 769.11; MSA 28.1083. A jury convicted him of armed robbery but was unable to reach a verdict on the felony-firearm count. After the trial, defendant pled guilty to the supplemental charge and the prosecutor agreed not to proceed further on the felony-firearm charge. Defendant was sentenced to from 10 to 30 years imprisonment and appealed as of right. This Court originally granted the prosecutor's motion to affirm. On August 20, 1982, the Supreme Court vacated this Court's order and remanded the case for plenary consideration of the issues raised, 414 Mich. 905 (1982).

Defendant was convicted of the armed robbery of a party store clerk on the evening of February 2, 1980. The complainant testified that defendant, armed with a gun, came into the store and demanded money. Complainant gave the defendant approximately $20 in cash. After the defendant left, she called the police and gave them a description of the robber.

Some 10 to 15 minutes later, the police arrived at the store with defendant in a squad car. Complainant identified defendant as the robber.

This case requires us to again consider the circumstances under which the police may subject a suspect to an on-the-scene identification without counsel. Defendant argues that the procedure denied him his constitutional right to counsel and was unduly suggestive.

In Michigan, a defendant is generally entitled to have counsel present during an identification procedure. People v Jackson, 391 Mich. 323; 217 NW2d 22 (1974). An exception is allowed where the police apprehend a suspect and return him for a prompt on-the-scene identification. People v Anderson, 389 Mich. 155, 187, fn 23; 205 NW2d 461 (1973). Such a procedure allows the police to know whom to arrest and assures the expeditious release of innocent suspects. It also allows the victim to confirm or deny the identification while his or her memory is fresh and accurate. People v Turner, 120 Mich. App. 23, 34-35; 328 NW2d 5 (1982); People v Purofoy, 116 Mich. App. 471, 480; 323 NW2d 446 (1982).

Several panels of this Court have allowed the police to conduct a prompt on-the-scene identification without regard to the circumstances in which the defendant was apprehended. See e.g., People v Coward, 111 Mich. App. 55, 63; 315 NW2d 144 (1981); People v Tucker, 86 Mich. App. 608, 611; 273 NW2d 498 (1978), lv den 406 Mich. 964 (1979). This line of cases seems to be based on the Anderson, supra, decision which recognized the procedure in a footnote without setting any guidelines for its use.

In recognition of the inherent suggestiveness of on-the-scene identifications without counsel being present, a panel of this Court in People v Dixon, 85 Mich. App. 271; 271 NW2d 196 (1978), lv den 406 Mich. 906 (1979), held the procedure improper where the police have more than a mere suspicion that the defendant was involved in the crime. According to Dixon, the police in such cases may not return the defendant to the scene of the crime. Instead, they must permit defendant's counsel to be present.^[1]

While we agree that a per se rule allowing on-the-scene identifications fails to consider the suggestive nature of such procedures and fails to protect a defendant's right to counsel, we find the Dixon "more than a mere suspicion" standard too restrictive.^[2] We, therefore, agree with the middleground approach adopted in People v Turner, supra:

"Therefore, we would allow the police officers to conduct an on-the-scene identification without the presence of counsel at any time promptly after the crime, except in certain situations. First, we require counsel to be present where the police have very strong evidence that the person stopped is the culprit. Strong evidence exists where the suspect has himself decreased any exculpatory motive, i.e., where he has confessed or presented the police with either highly distinctive evidence of the crime or a highly distinctive personal appearance." 120 Mich App 36-37.

The Turner approach has been adopted by other panels of this Court. See People v McCuaig, 126 Mich. App. 754; 338 NW2d 4 (1983); People v Fields, 125 Mich. App. 377; 336 NW2d 478 (1983); People v Raybon, 125 Mich. App. 295; 336 NW2d 782 (1983).

We recognize that the Turner standard will not always be an easy one to apply. In view of the purposes for on-the-scene identifications, we interpret the term "very strong evidence" to mean evidence such that the police, acting in good faith, have no reasonable necessity for confirming that the suspect they have apprehended is in fact the perpetrator. Applying this standard to the instant case, we are convinced that the on-the-scene identification was proper. A short time after the complainant's call to the police, an officer observed a man matching the general description given by complainant trotting down a street in the general vicinity of the store. The defendant was found shortly thereafter huddling in some bushes behind a garage. A search of the area produced $21 in cash in a nearby burning barrel. Defendant was placed in a squad car and transported back to the store.

Certainly, the police had reason to suspect defendant's involvement. However, the defendant neither matched a highly distinctive personal description nor was he found with highly distinctive evidence of the crime. In our opinion, the circumstances of defendant's apprehension did not constitute "very strong evidence" such that there was no reasonable necessity to conduct an on-the-scene identification. We conclude that the procedure was proper and that defendant was not denied his right to counsel.

Defendant next contends that the identification procedure was unduly suggestive and should have been excluded. However, defendant's failure to move for suppression of the identification testimony in the trial court precludes appellate review of this issue. People v Moss, 397 Mich. 69, 70; 243 NW2d 254 (1976); People v King, 107 Mich. App. 208, 210; 309 NW2d 207 (1981), rev'd on other grounds 413 Mich. 939 (1982). Even were we to review this issue, we would find that the procedure was not unnecessarily suggestive or conducive to misidentification.

The remaining issues raised by defendant are without merit. Defendant was not denied effective assistance of counsel under the standard set forth in People v Garcia, 398 Mich. 250; 247 NW2d 547 (1976). Counsel's decision not to request a corporeal line-up and not to move for suppression of the identification testimony were matters of trial strategy. The record reveals that counsel thoroughly cross-examined complainant on the identification question and argued suggestiveness to the jury. See People v Tucker, supra, p 611; People v Johnson, 59 Mich. App. 187; 229 NW2d 372 (1975).

The record discloses that the precise terms of the plea agreement were stated on the record and that defendant, defense counsel, and the prosecutor understood the terms of the agreement. There was full compliance with GCR 1963, 785.7(2).

Affirmed.

R.M. MAHER, P.J. (concurring).

I specially concur to state that, after reevaluating the question of on-the-scene identifications, I have reconsidered my position in People v Dixon, 85 Mich. App. 271; 271 NW2d 196 (1978), lv den 406 Mich. 906 (1979), and adopt the position taken in People v Turner, 120 Mich. App. 23; 328 NW2d 5 (1982), lv den 417 Mich. 1064 (1983).

As the majority opinion states, panels of this Court have taken widely divergent positions on when a suspect is entitled to have counsel present at "prompt, `on-the-scene' corporeal identifications within minutes of the crime", People v Anderson, 389 Mich. 155, 187, fn 23; 205 NW2d 461 (1973). The positions have ranged from always permitting such identifications without counsel present (People v Coward, 111 Mich. App. 55; 315 NW2d 144 [1981]) to permitting them only if the police have no more than a "mere suspicion that the person in custody is wanted for the crime" (Dixon, supra). In Turner, supra, this Court took a middle position and held that counsel need be present only where the police have "very strong evidence" that the person apprehended is the criminal. While I now believe that the position in Turner is the most tenable position available to this Court, I am nevertheless troubled by the suggestiveness inherent in any on-the-scene identification and believe that this factor, and not the amount of evidence pointing to a particular suspect, should be the deciding criterion in determining whether or not the presence of counsel is required in an on-the-scene identification. Such identifications are generally one-on-one confrontations which occur almost immediately after the "victim" has suffered the trauma of a crime and in which the suspect is personally brought before the victim by a police officer. These circumstances must almost inevitably lead to a high degree of suggestiveness. See Russell v United States, 133 US App DC 77; 408 F2d 1280 (1969).

However, in People v Anderson, supra, the Supreme Court apparently determined that this suggestiveness did not outweigh the benefits of such prompt identifications without counsel present. See 389 Mich. 187, fn 23. This Court is therefore precluded from holding that, as a matter of law, counsel must always be present at such procedures. Given the Supreme Court's statement in Anderson, I believe that the position taken in Turner presents the best balance between the rights of suspects and the need for practical standards in police investigations. I therefore join the majority in adopting and applying the Turner position in this case.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] Compare Judge MAHER'S dissent in People v Purofoy, 116 Mich. App. 471, 486; 323 NW2d 446 (1982).

[2] Enforcement of the People v Dixon, 85 Mich. App. 271; 271 NW2d 196 (1978), lv den 406 Mich. 906 (1979), standard would effectively eliminate use of on-the-scene identifications. We can think of no situation in which the police would have sufficient probable cause to apprehend a suspect and return him to the scene while at the same time having no more than a mere suspicion of his involvement in the crime. See People v Raybon, 125 Mich. App. 295; 336 NW2d 782 (1983).