Opinion
Docket No. 8797.
Decided March 31, 1971. Leave to appeal denied, 386 Mich. 752.
Appeal from Oakland, Philip Pratt, J. Submitted Division 2 March 5, 1971, at Lansing. (Docket No. 8797.) Decided March 31, 1971. Leave to appeal denied, 386 Mich. 752.
Earl Smith was convicted of armed robbery. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Thomas G. Plunkett, Prosecuting Attorney, and Dennis Donohue, Chief Appellate Counsel, for the people.
Field, Field Rundell (by Curtis G. Rundell, II), for defendant on appeal.
Before: R.B. BURNS, P.J., and J.H. GILLIS and T.M. BURNS, JJ.
Defendant Earl Smith was convicted by a jury of armed robbery. MCLA § 750.529 (Stat Ann 1971 Cum Supp § 28.797). He appeals as of right alleging the trial court committed reversible error by denying a motion to suppress evidence of identifications of defendant made by witnesses to the robbery.
The record shows that three armed men entered a grocery store, forced the store employees into a rest room, and then emptied the safe in the manager's office. Defendant was alleged to have been the man who guarded the rest room door during the robbery.
Defendant argues that pretrial identification procedures irreparably tainted both the lineup and the in-court identifications made by the witnesses who were forced into the rest room.
A separate record was made on the issue of the admissibility of the eyewitness identifications (see People v. Hutton, 21 Mich. App. 312; People v. Childers, 20 Mich. App. 639), where it was shown that six witnesses identified defendant from a set of eleven photographs produced by the police. The prosecution concedes on appeal that one of these photographs was the product of an illegal search and seizure stemming from an earlier unrelated police investigation. It was a Polaroid snapshot depicting defendant in the company of two women in a casual social setting. Defendant was also pictured in one of five police "mugshots." The remaining photographs were Polaroid snapshots of various other people. Four witnesses stated they made identification from the set of "mugshots" first, and were allowed to testify at trial. One witness who made identification from the Polaroid snapshot did not testify pursuant to stipulation by the prosecutor. The remaining witness was allowed to testify as to other matters and then made in-court identification of defendant without objection by defense counsel. All witnesses who made identifications at trial stated they could have done so regardless of the display of photographs.
In Simmons v. United States (1968), 390 U.S. 377, 384 ( 88 S Ct 967; 19 L Ed 2d 1247, 1253), the Supreme Court held that convictions based on eyewitness identification at trial following a pretrial identification by photograph would be set aside on that ground only if the photographic identification procedure was "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification".
Applying that standard to the case at bar, we find the trial court was correct in ruling that there was little chance that the procedure utilized led to misidentification of defendant. The witnesses were able to see the robber, later identified as defendant, for several minutes during the holdup. They viewed the sets of photographs separately and made separate identifications at the lineups. Their identification of defendant was unequivocal, notwithstanding extensive cross-examination. No evidence was presented that would indicate that the witnesses were told anything about the investigation, or which persons in the photographs were under suspicion. The use of the illegally seized photograph had no influence on the witnesses since those who testified made identification from the "mugshots" prior to viewing the snapshot. Under these circumstances, we find no error in allowing such evidence to go to the jury. People v. Noble (1970), 22 Mich. App. 499; People v. Nugent (1969), 21 Mich. App. 58.
We also find no merit in defendant's claim that he was denied counsel at the lineups pursuant to United States v. Wade (1967), 388 U.S. 218 ( 87 S Ct 1926, 18 L Ed 2d 1149). The detective in charge of the lineups testified he read defendant a statement explaining the right to have counsel of his own choice or at public expense present at such stages of the proceedings and that defendant stated he wished to proceed without counsel. This statement was introduced into evidence and defendant admitted signing it. The trial court could properly find defendant waived his right to counsel. See People v. Hartwick (1967), 8 Mich. App. 193; People v. Matthews (1970), 22 Mich. App. 619.
Affirmed.