City of Detroit v. Wilson

173 N.W.2d 252, 19 Mich. App. 595, 1969 Mich. App. LEXIS 1008

Opinion

V. J. Brennan, J.

Defendant seeks reversal of a conviction of violation of § 39-1-36 of the Code of the City of Detroit.

* The charge was that he did improperly and wrongfully ogle, annoy, follow and pursue and did improperly and wrongfully molest by gesture a 14-year-old girl in the public streets of the city. The offense took place at about 8:30 a.m. on April 30, 1967. The girl testified that a man in a car said, “Come in the car, baby”; he then stopped at a red light and said, “Come on, baby,” and later, “Don’t you like me, come in the car and I’ll do it to you,” and “I’ll get you after church.” On the same day, defendant was identified by the girl in a lineup consisting of himself and four other men at the police station. The court found the defendant guilty on the girl’s testimony, and he was sentenced to 15 days in jail, one year’s probation, and $150 fine.

Defendant appeals this judgment, contending that the identification was the result of an unrepresentative lineup, that he was without counsel at the time, that there was no basis in fact for finding him guilty of ogling, and that the sentence was excessive.

The record in this case indicates no error or prejudice resulting to the defendant from his individual identification by the minor witness. The totality of the surrounding circumstances establishes that-the witness had ample opportunity to observe defendant’s face and features and to make a positive identification by means sufficiently distinguishable from the lineup. (See People v. Floyd (1968), 15 Mich App 284, 288.) United States v. Wade (1967), 388 US 218 (87 S Ct 1926, 18 L Ed 2d 1149) which requires counsel at lineups, is inapplicable. This constitutional right applies only to confrontations for identification conducted after June 12, 1967. Stovall v. Denno (1967), 388 US 293 (87 S Ct 1967, 18 L Ed 2d 1199); People v. Barrow (1969), 17 Mich App 624.

Nor has Miranda v. Arizona (1966), 384 US 436 (86 S Ct 1602, 16 L Ed 2d 694,10 ALR3d 974) been violated. Nothing in the record indicates that any statements, admissions or other prejudicial evidence was received which would affect defendant adversely while he was without counsel. People v. Sullivan (1969), 18 Mich App 1.

The witness’s testimony, in addition to the possibility of “ogling”, indicated improper and suggestive speech, annoyance, molestation, and wrongful pursuit, which are all forbidden by code § 39-1-36. In City of Detroit v. Sanchez (1969), 18 Mich App 399, this Court struck down the provisions regarding “following or pursuing,” holding that the ordinance makes criminal innocent as well as culpable conduct, but expressed no opinion as to the rest of the ordinance. Unlike the “wrongful following” in Sanchez, where establishing criminal intent becamq a problem, here there is an expressed intent to do something basically and criminally wrong, in violation of other parts of the section. Justice and good conscience require that our children and other persons under like circumstances be protected. These sections of the ordinance remain valid and binding upon any person who clearly expresses an intent, either by overt action or foul tongue, to interfere with or abuse other persons or culpably offend their dignity or sensibilities.

The discretionary sentence is within the maximum provided by ordinance and is sustained. People v. Mulier (1968), 12 Mich App 28.

Affirmed.

All concurred.

“No person shall use indecent or immoral language, nor shall any person improperly, lewdly, wantonly, or wrongfully accost, ogle, insult, annoy, follow, pursue, lay hands on or, by gesture, movement of body or otherwise, wrongfully molest any person in any public street, lane, alley, square, park, public vehicle or space in the city.”