Opinion
Docket No. 73618.
Decided October 2, 1984. Leave to appeal denied, 421 Mich. 864.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief Appellate Counsel, and John L. Kroneman, Assistant Prosecuting Attorney, for the people.
Bushnell, Gage, Doctoroff Reizen (by George E. Bushnell, Carl J. Marlinga and Kathleen Nesi), for defendant.
Defendant was convicted of assault and battery, MCL 750.81; MSA 28.276, by a jury. Defendant was sentenced to two years probation with the first ten days in the county jail. Defendant appeals his conviction to this Court as of right.
On April 22, 1982, at 10:50 p.m., a security guard, David Bone, was assaulted on the grounds of the Kirk in the Hills Church in Bloomfield Hills, Michigan. He was slashed with an ice pick and received superficial scratches.
Bone recognized the four assailants as intruders he had chased off the grounds several days before. Bone was shown a photographic line-up of defendant on May 3, 1982, but was unable to identify defendant. At a subsequent photographic line-up on May 24, 1982, Bone identified defendant immediately.
Defendant's first contention on appeal is that reversal is required because counsel was not present at the photographic line-up. In People v Anderson, 389 Mich. 155; 205 N.W.2d 461 (1973), the Court stated the following rules concerning photographic line-ups: (1) subject to certain exceptions, identification by photograph should not be used where the accused is in custody; and (2) where there is legitimate reason to use photographs for identification of an accused in custody, the accused has a right to have counsel present during the identification procedure. However, because the defendant was not in custody here, Anderson is not directly applicable. In People v Lee, 391 Mich. 618, 624-625; 218 N.W.2d 655 (1974), the Court said it was the fact of custody which required the implementation of the Anderson rules. The Court specifically declined to extend Anderson to pre-custody or pre-questioning phases of criminal investigation. Because defendant was not in custody at the time Bone identified him through the photographic line-up, the Anderson rule does not apply. However, our inquiry does not end here. We must also decide whether defendant was readily available for a corporeal line-up and whether defendant had become the focus of the investigation to the point that counsel should have been present at the photographic line-up.
"Readily available" has been construed in narrow terms. In the case at bar, while defendant was apparently cooperative and had talked with the police, we do not find he was available under the applicable case law. "Readily available" has been strictly construed to mean subject to legal compulsion to appear at a line-up. People v Dumas, 102 Mich. App. 196; 301 N.W.2d 849 (1980); People v Erwin Wilson, 95 Mich. App. 93; 290 N.W.2d 89 (1980); People v Hoerl, 88 Mich. App. 693; 278 N.W.2d 721 (1979); People v McNeill, 81 Mich. App. 368; 265 N.W.2d 334 (1978). No warrant had been issued and thus the police had no means by which defendant could have been compelled to appear; indeed, at the time of the photo identification, probable cause for a warrant was still lacking.
Having found that defendant was not "readily available" we must decide whether the investigation had focused on defendant to the point that counsel should have been required at the photographic line-up. In Lee, supra, Hoerl, supra, and People v Cotton, 38 Mich. App. 763; 197 N.W.2d 90 (1972), it was stated that simply because defendant was under investigation did not make it necessary for counsel to be present at a photographic line-up. However, in this case defendant had become the clear focus of the investigation when the photographic line-up was conducted. This case is distinguishable in this regard from Hoerl, supra, because suspicion was based on more than an anonymous phone call. Here the police had interviewed the defendant and given him his warnings under Miranda v Arizona, 384 U.S. 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966). His picture had been obtained for the purpose of the photographic line-up. The police had interviewed other suspects to get defendant's identity. A description of defendant had been provided by the complainant. We conclude that defendant had sufficiently become the focus of the police investigation to require the presence of counsel at the photographic line-up. In People v Kachar, 400 Mich. 78; 252 N.W.2d 807 (1977), the Court required the presence of counsel at a photographic line-up when the investigation has reached this type of focus. This Court first used this approach in People v Cotton, supra, pp 769-770, and continued to apply it after Kachar even though Kachar is not binding precedent because the majority opinion was signed by only two justices. Negri v Slotkin, 397 Mich. 105; 244 N.W.2d 98 (1976). One example of the application of Kachar can be found in People v Hill, 88 Mich. App. 50; 276 N.W.2d 512 (1979). Counsel should have been present at the photographic line-up in this case.
If a pretrial identification has been improperly conducted, then an independent basis for identification must be established. People v Carter, 415 Mich. 558; 330 N.W.2d 314 (1982); Kachar, supra. The complainant's testimony at the hearing held pursuant to United States v Wade, 388 U.S. 218; 87 S Ct 1926; 18 L Ed 2d 1149 (1967), established an adequate independent basis for the in-court identification.
Because we have found that there was adequate independent basis for the in-court identification we will not address defendant's claim that the photographic line-up was impermissibly suggestive except to note that our review of the record finds no support for the allegation.
Defendant's conviction is affirmed.
Affirmed.