People v. Winters

571 N.W.2d 764 (1997) 225 Mich. App. 718

PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Andre C. WINTERS, Defendant-Appellant.

Docket No. 184935.

Court of Appeals of Michigan.

Submitted March 4, 1997, at Detroit. Decided October 14, 1997, at 9:05 a.m. Released for Publication January 8, 1998.

Frank J. Kelley, Attorney, Thomas L. Casey, Solicitor General, Richard Thompson, Prosecuting Attorney, Joyce F. Todd, Chief, Appellate Division, and Janice A. Kabodian, Assistant Prosecuting Attorney, for People.

State Appellate Defender by Desiree M. Ferguson, for defendant-appellant on appeal.

Before DOCTOROFF, P.J., and YOUNG and MICHAEL J. KELLY, JJ.

YOUNG, Judge.

Following a jury trial, defendant was convicted of assault with intent to commit murder, M.C.L. § 750.83; M.S.A. § 28.278, possession of a short-barreled shotgun, M.C.L. § 750.224b; M.S.A. § 28.421(2), and possession of a firearm during the commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2). Defendant was sentenced to concurrent prison terms of twenty-five to fifty years for the assault with intent to commit murder conviction and three to five years for the possession of a short-barreled shotgun conviction, to be served consecutively to a two-year term for the felony-firearm conviction. Defendant appeals his convictions and sentences as of right. We affirm.

On January 9, 1994, at about 11:10 p.m., the victim drove into the parking lot of a White Castle restaurant on Woodward Avenue in Ferndale. As he parked, the victim saw three men, who were standing in the parking lot near the drive-through lane, approach his car. One man stood next to the driver's side of the victim's car, one stood on the passenger side, and one stood in front of the restaurant door facing the car. The man standing next to the passenger's side of the car, later identified as defendant, was wearing a red bandana on his head, a long redand-black plaid hunter's jacket, and a shorter black leather jacket over that. The man standing next to the driver's side of the car tapped on the window. The victim rolled down the window about an inch, and the man asked him for the time. The victim told the man the time and rolled the window up again.

At that point, the victim noticed movement near the passenger's side of the car. The victim saw defendant pull a shotgun from under his jacket and fire. The victim was struck in the right arm. Some of the shotgun pellets also struck the victim in the chest and chin. The victim managed to pull out of the parking lot and drive away. He eventually stopped the car, got out, and collapsed at the doorway of a Subway sandwich shop about a quarter mile from the scene of the shooting. The victim was bleeding severely and asked repeatedly whether his right arm was still attached. When the police arrived, the victim told them he had been shot. He gave the police a description of his assailants, stating that one man was wearing a New York Giants baseball cap and that another one had a Chicago Bulls baseball cap. The victim specifically described the shooter as a white male wearing a bandana and a redand-black plaid jacket.

Officer Michael Lennon testified that he proceeded to the White Castle restaurant, where he spotted three men matching the descriptions given by the victim standing at a telephone booth. Two of the men, Chuck Vigil and defendant, ran upon seeing the officer. The third, David Boswell, told Officer Lennon that the other two men had just robbed him and taken his coat. However, when Officer Lennon and Boswell drove to where defendant and Vigil had been apprehended by other officers, Boswell denied that they were the men who robbed him. All three men were taken into custody and driven to the Subway restaurant. Defendant was wearing a red bandana and a red-andblack plaid jacket. As the victim was being placed in the ambulance, he stated that the three suspects were the ones who shot him. The victim specifically identified defendant as the shooter. The police eventually found a shotgun, which recently had been fired, buried in a mound of snow approximately thirty feet from the telephone booth in the White Castle parking lot.

I

Defendant first argues that the victim's onthe-scene identification was improper because it was taken in violation of defendant's "constitutional" right to counsel. We disagree.

We note initially that this issue does not involve defendant's Sixth Amendment right to counsel. U.S. Const., Am. VI. In Moore v. Illinois, 434 U.S. 220, 226-227, 98 S.Ct. 458, 463-464, 54 L.Ed.2d 424 (1977), the United States Supreme Court adopted the plurality opinion in Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), which stated that the right to counsel announced in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), only attaches to corporeal identifications conducted "at or after the initiation of adversary judicial criminal proceedings...." Kirby, supra at 689, 92 S.Ct. at 1882.

Rather, the issue in this case is whether defendant's right to counsel established by our Supreme Court in People v. Anderson, 389 Mich. 155, 205 N.W.2d 461 (1973), was violated. In Anderson, the Court applied the Wade requirements to all pretrial identification procedures. Id. at 168, 205 N.W.2d 461. The Anderson Court rejected Kirby because it contained no majority opinion regarding a defendant's right to counsel at "pre-indictment" out-of-court corporeal identifications. Id. at 170, 205 N.W.2d 461. Anderson, however, was decided before the United States Supreme Court's approval in Moore of the distinction drawn by the Kirby plurality. Thus, it appears that Anderson was our Supreme Court's unsuccessful attempt to predict the course that the United States Supreme Court would take in applying the Wade requirements to "pre-indictment" identifications.^[1]

Again before Moore, in People v. Jackson, 391 Mich. 323, 338, 217 N.W.2d 22 (1974), our Supreme Court acknowledged that the Anderson rules were not mandated by constitutional guarantees:

The ... Anderson rules ... represent the conclusion of this Court, independent of any Federal constitutional mandate, that, both before and after commencement of the judicial phase of a prosecution, a suspect is entitled to be represented by counsel at a corporeal identification....

Nevertheless, the Jackson Court, again on an unspecified basis, reaffirmed the Anderson rules in the exercise of its "constitutional power to establish rules of evidence applicable to judicial proceedings in Michigan courts," in order to "preserve best evidence eyewitness testimony from unnecessary alteration by unfair identification procedures...." Id. at 338-339, 217 N.W.2d 22; see also id. at 354-355, 217 N.W.2d 22 (Coleman, J., dissenting).

Of course, the Michigan and federal constitutions may have different meaning. People v. Pickens, 446 Mich. 298, 315, 521 N.W.2d 797 (1994). However, Anderson and Jackson did not even mention, much less cite, as a basis for the Anderson rules our state analogue of the Sixth Amendment, Const. 1963, art. 1, § 20. Consequently, neither Anderson nor Jackson can be read as expanding art. 1, § 20 beyond those protections provided by the Sixth Amendment. Indeed, in People v. Cheatham, 453 Mich. 1, 551 N.W.2d 355 (1996), the Supreme Court recognized, albeit in dicta, that a defendant's right to counsel under Const. 1963, art. 1, § 20, like the Sixth Amendment right to counsel, "``attaches only at or after the initiation of adversary judicial proceedings by way of formal charge, preliminary hearing, indictment, information, or arraignment.'" Cheatham, supra at 9, n. 8, 551 N.W.2d 355, quoting People v. Wright, 441 Mich. 140, 173, 490 N.W.2d 351 (1992) (RILEY, J., dissenting). as Justice RILEY noted in her dissent in Wright, supra, "[v]irtually all Michigan case law regarding the right to counsel tracks the analysis by the United States Supreme Court of the Sixth Amendment right to counsel." Id. at 173, 490 N.W.2d 351.

The confusion among panels of this Court resulting from Anderson was succinctly explained by Judge WAHLS in his opinion in People v. Marks, 155 Mich.App. 203, 399 N.W.2d 469 (1986):

Since Anderson, the question of on-thescene identification has been raised in the context of the "constitutional right to counsel," see, e.g., People v. Wilki, 132 Mich.App. 140, 142, 347 N.W.2d 735 (1984), and specifically the "Sixth Amendment right to counsel," see, e.g., People v. Fields, 125 Mich.App. 377, 380, 336 N.W.2d 478 (1983); People v. Turner, 120 Mich.App. 23, 33-34, 328 N.W.2d 5 (1982) ...; People v. Coward, 111 Mich.App. 55, 62, 315 N.W.2d 144 (1981)....

While Anderson and the above cases from this Court at first glance appear to be Sixth Amendment cases, further inquiry reveals otherwise. In People v. Jackson, 391 Mich. 323, 338, 217 N.W.2d 22 (1974), the Supreme Court observed that the Anderson rules "represent the conclusion of this Court, independent of any Federal constitutional mandate, that, both before and after commencement of the judicial phase of a prosecution, a suspect is entitled to be represented by counsel at a corporeal identification." Furthermore, were Anderson a statement of Sixth Amendment law, it would no longer be controlling, because the United States Supreme Court has since approved of the distinction drawn by the Kirby plurality but rejected in Anderson. [Marks, supra at 209-210, 399 N.W.2d 469.]^[2]

If we were writing on a clean slate, we would adopt the federal rule, as announced in Kirby and adopted in Moore, that the right to counsel provided in Wade attaches only to corporeal identifications conducted at or after the initiation of adversary judicial criminal proceedings. Moore, supra at 226-227, 98 S.Ct. at 463-464. The Wade decision was rightly focused on the routine "police station" lineup and show-up procedures employed by the police to obtain evidence for use at trial as a "critical stage" wherein the right to counsel is implicated.^[3] The concerns associated with such a stationhouse lineup are simply absent where the police promptly apprehend a suspect and return him to the scene of the crime for identification by the victim. Moreover, we note that defendants still have an independent constitutional basis for challenging lineup procedures conducted before the initiation of adversary judicial proceedings that are so unnecessarily suggestive and conducive to irreparable mistaken identification that they amount to a denial of due process. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); see also Anderson, supra at 168, 205 N.W.2d 461.

When a person has not been formally charged with a criminal offense, Stovall strikes the appropriate constitutional balance between the right of a suspect to be protected from prejudicial procedures and the interest of society in the prompt and purposeful investigation of an unsolved crime. [Kirby, supra at 691, 92 S.Ct. at 1883.]

Regardless of the shortcomings in the Anderson decision, it remains the law in Michigan, and we must therefore accord it appropriate deference. Boyd v. W G Wade Shows, 443 Mich. 515, 523, 505 N.W.2d 544 (1993). Of particular importance to our analysis is the fact that in Anderson, the Supreme Court, in dicta, recognized that the absence of counsel at an eyewitness identification procedure may be justified where there is a prompt, on-the-scene corporeal identification within minutes of the crime. Anderson, supra at 187, n. 23, 205 N.W.2d 461, citing Russell v. United States, 133 U.S. App DC 77, 408 F.2d 1280 (1969). On the basis of this Anderson dicta, this Court has adopted three different approaches in analyzing whether a defendant is entitled to counsel during a prompt, on-the-scene corporeal identification. In People v. Dixon, 85 Mich.App. 271, 280-281, 271 N.W.2d 196 (1978), this Court held that when the police have "more than a mere suspicion" that the suspect is wanted for the crime, the officer cannot return the suspect to the scene of the crime but must take him to the police station and have a lineup at which counsel is present.^[4]

In People v. Turner, 120 Mich.App. 23, 36, 328 N.W.2d 5 (1982), this Court, recognizing that police officers are "neither lawyers nor high wire trapeze artists," as well as the "practical difficulties that police have in following rules designed to balance constitutional values with good police work," declined to follow the abstruse Dixon rule and instead adopted what it apparently believed was a more workable rule. The Turner Court held that police officers may conduct an on-thescene identification without the presence of counsel any time promptly after the crime, except where the police have "very strong evidence" that the person stopped is the culprit. According to Turner, "[s]trong 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." Id. at 36-37, 328 N.W.2d 5.

Rather than simplifying this area, Turner's "very strong evidence" rule appears to be as inherently vague as the "more than a mere suspicion" rule in Dixon.^[5] We agree with Judge WAHLS that the police cannot reasonably be expected to make a practical decision whether they have "strong evidence" or "very strong evidence" in any given case. Marks, supra at 217, 399 N.W.2d 469. In People v. Wilki, supra at 144, 347 N.W.2d 735, yet another panel of this Court, concerned that "the Turner standard will not always be an easy one to apply," interpreted "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." Id. at 144, 347 N.W.2d 735.^[6]

We believe that Dixon and Turner fail to provide a simple, practical standard consistent with Anderson for use by police officers in the field. Therefore, we hold that it is proper and does not offend the Anderson requirements for the police to promptly conduct an on-the-scene identification. People v. Purofoy, 116 Mich.App. 471, 480, 323 N.W.2d 446 (1982); People v. Stanton, 97 Mich.App. 453, 458, n. 1, 296 N.W.2d 70 (1980); People v. Tucker, 86 Mich.App. 608, 611, 273 N.W.2d 498 (1978); People v. Williams, 57 Mich.App. 612, 614, 226 N.W.2d 584 (1975); see also Marks, supra at 214, 399 N.W.2d 469. Such on-the-scene confrontations are reasonable, indeed indispensable, police practices because they permit the police to immediately decide whether there is a reasonable likelihood that the suspect is connected with the crime and subject to arrest, or merely an unfortunate victim of circumstance. Tucker, supra at 611, 273 N.W.2d 498. Whatever the perceived problems of on-the-scene confrontations, it appears to us that prompt confrontations will, if anything, promote fairness by assuring greater reliability. Russell, supra at 81.^[7]

Applying the on-the-scene exception to the instant case leads us to conclude that the identification procedure employed here did not violate defendant's Andersonbased "right to counsel." Following the shooting, the victim was able to drive to the Subway restaurant about a quarter-mile away. Bleeding severely and awaiting an ambulance, the victim told the police that he had been shot, and he gave the police general descriptions of his assailants. The police found defendant and his accomplices in the immediate vicinity of the shooting and quickly took them to the Subway restaurant where the victim positively identified defendant as the shooter. This on-the-scene corporeal identification, within minutes after the shooting occurred, was not only reasonable, but necessary police practice. We find no error.

II

Defendant next argues that the onthe-scene identification by the victim was unduly suggestive and that the in-court identification should therefore have been suppressed as having no independent basis. Defendant's challenge below was directed to the absence of counsel at the on-the-scene identification, not to its suggestiveness. Consequently, there is no record on which we can review whether the on-the-scene identification was unduly suggestive. The issue is therefore not preserved for appellate review, and we decline to address it. See People v. Lee, 391 Mich. 618, 626-627, 218 N.W.2d 655 (1974); People v. Daniels, 163 Mich.App. 703, 710-711, 415 N.W.2d 282 (1987).

III

Next, defendant maintains that the jury's verdict was against the great weight of the evidence presented at trial. Because defendant failed to preserve this issue for appeal by moving timely for a new trial below, we decline to address it. MCR 2.611(A)(1)(e); People v. Dukes, 189 Mich.App. 262, 264, 471 N.W.2d 651 (1991).

IV

Defendant next argues that he must be resentenced because the trial court misinterpreted the instructions regarding the application of prior record variable 5 (PRV 5) (prior misdemeanor convictions) and prior record variable 7 (PRV 7) (subsequent/concurrent felony convictions). Defendant's challenge does not state a cognizable claim for relief. People v. Mitchell, 454 Mich. 145, 176-177, 560 N.W.2d 600 (1997). Because the sentencing guidelines do not have the force of law, "[t]here is no juridical basis for claims of error based on alleged misinterpretation of the guideline, instructions regarding how the guidelines should be applied, or misapplication of guideline variables." Id. (emphasis added). Consequently, defendant would not be entitled to resentencing on this basis even if we agreed that the guidelines' were misscored. We note that defendant does not claim that the guidelines' scores were based on inaccurate information or that his sentence was disproportionate.

Finally, defendant argues that he is entitled to resentencing because his sentencing information report stated that the guidelines' range was "180 to 300 [months] or life" when the actual range, according to the trial court's own discretionary scoring of the guidelines, should have been 120 to 300 months. Defendant did not object to this inaccuracy at sentencing and so has not preserved this issue for appeal. MCR 6.429(C). Accordingly, we will not review it.

Affirmed.

DOCTOROFF, P.J., concurred.

MICHAEL J. KELLY, J., concurred in the result only.

NOTES

[1] Anderson relied in part on this Court's decision in People v. Hutton, 21 Mich.App. 312, 175 N.W.2d 860 (1970). In Hutton, the Court, while recognizing that the holding in Wade applied to "post-indictment" identifications, seized on language in Wade suggesting that all compelled confrontations between the accused and the victim or eyewitness were "critical stages" of the prosecution. Id. at 320-321, 175 N.W.2d 860. The Hutton Court concluded that Wade was not intended to be limited to postindictment lineups. Id. at 321, 175 N.W.2d 860.

[2] The other two judges on the Marks panel concurred only in the result of Judge WAHLS' analysis concerning the propriety of the counselless onthe-scene identification in that case.

[3] The Wade Court, supra at 228-233, 87 S.Ct. at 1933, was concerned with, among other things, the "vagaries of eyewitness identification" and the potential for "improper influence" at such lineups.

[4] Dixon relied on People v. Patskan, 387 Mich. 701, 199 N.W.2d 458 (1972). However, as noted by Judge BASHARA in his dissent in Dixon, Patskan was decided before Anderson. In addition, we note that while Patskan involved an on-the-scene identification, Patskan's cursory analysis failed to take into account or even note the fact that Wade involved a "post-indictment" lineup. Patskan, supra at 715, 199 N.W.2d 458.

[5] Turner further confused matters by retaining the Dixon "more than a mere suspicion" standard where the police have already validly arrested the suspect for an unrelated offense. Turner, supra at 37, 328 N.W.2d 5.

[6] The Wilki Court's concern about the Turner rule is, to say the least, an understatement.

[7] Again, we believe that due process provides sufficient protection against unreliable pretrial identifications obtained through unnecessarily suggestive procedures. Moore, supra at 227, 98 S.Ct. at 464; see also Stovall, supra; Marks, supra at 217, 399 N.W.2d 469.