People v. Anderson

216 N.W.2d 780, 391 Mich. 419, 1974 Mich. LEXIS 144

• Court: Michigan Supreme Court
• Decided: April 16, 1974
• Docket: 1 January Term 1974, Docket No. 54,307
• Status: Published

Opinions

T. G. Kavanagh, J.

The defendant, James Lee Anderson, was convicted of armed robbery. MCLA 750.529; MSA 28.797. Five of the witnesses who identified him at the trial had previously identified him at photo showings. The showings were held while Anderson was in custody in connection with another offense and, it would appear, under suspicion of having committed this offense. He was not represented by counsel at the showings.

The Court of Appeals remanded for an evidentiary hearing to determine whether the investigation had focused on Anderson and whether the showings were impermissibly suggestive and, if so, whether the identifications had an independent source. The Court of Appeals also required, in the event such remand hearing did not result in a new trial, that Anderson be resentenced before another judge because the trial judgé had indicated he had taken into consideration at sentencing his belief that Anderson had protected a codefendant resulting in the codefendant’s acquittal.

The prosecutor appeals on leave granted claiming that Anderson did not have a right to counsel at the photo showings because they took place before a formal complaint had been filed and an arrest warrant issued on the armed robbery charge, citing the decision of the United States Supreme Court in Kirby v Illinois, 406 US 682; 92 S Ct 1877; 32 L Ed 2d 411 (1972).

The prosecutor also contends, relying on the still more recent decision in United States v Ash, 413 US 300; 93 S Ct 2568; 37 L Ed 2d 619 (1973), that the Sixth Amendment right to counsel does not apply to photo showings.

In People v [Franklin] Anderson, 389 Mich 155; 205 NW2d 461 (1973), this Court held that there should be no photo showing if a corporeal lineup could be held. We said that a photo showing of a person in custody in the situation where a corporeal lineup could not be held for the reasons suggested on pp 186-187, did not diminish the right to counsel at such photo showing. The people argue in the instant case that the rule of Franklin Anderson should not apply, because the defendant was in custody for a different crime in a different place. We are not persuaded. It is the fact of custody that requires implementation of the Franklin Anderson rule, not the place of or reason for the custody.

In People v Jackson, 391 Mich 323; 217 NW2d 22 (1974), this Court considered the Kirby and Ash decisions of the United States Supreme Court and held, independent of any Federal constitutional right to counsel, that there is such a right to counsel except in exigent circumstances where there is need to conduct the showing before the accused can be informed of his right to counsel and has an opportunity to obtain counsel.

For the reasons set forth in People v [Franklin] Anderson, supra, pp 168-169, 186-187, and People v Jackson, supra, this case is remanded to the trial court for an evidentiary hearing.

If James Lee Anderson does not obtain a new trial following the hearing on remand he should be resentenced before another judge as the trial judge did err in taking into consideration at the time of sentencing his personal impression that Anderson was protecting a codefendant. Anderson could not properly be punished for exercising his right to remain silent at the trial guaranteed by the Fifth Amendment to the United States Constitution. We regard the judge’s consideration of his belief that Anderson was shielding a codefendant as the equivalent of the error found in Scott v United States, 135 US App DC 377; 419 F2d 264 (1969), wherein the United States Court of Appeals for the District of Columbia Circuit rejected the argument that a judge may impose additional punishment because he believes the defendant committed perjury, saying that if the government wishes to prosecute for the independent substantive offense of perjury it may do so and that in such a proceeding the defendant would be entitled to all the protections of a criminal trial. Similarly, see People v White, 130 Ill App 2d 775; 267 NE2d 129 (1971).

Since the decision herein by the Court of Appeals, we have held that a sentencing judge may consider the juvenile record of a defendant at the time of sentencing. See People v McFarlin, 389 Mich 557; 208 NW2d 504 (1973).

Remanded for further proceedings consistent with this opinion.

T. M. Kavanagh, C. J., and Swainson and Williams, JJ., concurred with T. G. Kavanagh, J.