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 judge 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 U.S. 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 U.S. 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 N.W.2d 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 N.W.2d 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 F.2d 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 N.E.2d 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 N.W.2d 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.
M.S. COLEMAN, J. (dissenting).
While in jail for an armed robbery in Southfield, defendant became a suspect in the instant case which concerns an armed robbery in Detroit. The case was in a purely investigative stage. No judicial proceedings had begun.
On February 12, 1970, the witnesses to the Detroit robbery were shown 50 photographs. They did not identify any and it is not known whether or not defendant's photo was among them. The next day, 17 more photographs were shown to the witnesses. Five identified the defendant. One eyewitness not present at the photo showing identified defendant independently at trial. Defendant also admitted guilt at his sentencing hearing, so there is no doubt of his guilt, only of the process.
The Court has remanded this case for an evidentiary hearing. As authority, People v [Franklin] Anderson, 389 Mich. 155; 205 N.W.2d 461 (1973) and People v Jackson, 391 Mich. 323; 217 N.W.2d 22 (1974) are cited. In my dissent to the Jackson decision, I noted that the "United States Supreme Court has afforded strong and recent precedent which we ignore." We have again done so.
The precedent to which I referred is Kirby v Illinois 406 U.S. 682; 92 S Ct 1877; 32 L Ed 2d 411 (1972) and United States v Ash, 413 U.S. 300; 93 S Ct 2568; 37 L Ed 2d 619 (1973). In Kirby, the Court said the presence of counsel is not required at events prior to the beginning of adversary criminal proceedings. In Ash, the Court said the presence of counsel is not required when photographic displays are used for identification purposes.
As did Jackson, the instant case falls within the Kirby and Ash rules. It remains my belief that "adoption of those rules would promote efficient criminal investigation while preserving the rights of all citizens". As in Jackson, I do not believe the Court's decision as effectively serves those ends.
As a matter of policy, the majority opinion is untenable in its general application. The effect of the finding is to mandate that before the judicial process begins and while a crime is under investigation, the whereabouts of each possible suspect must be ascertained prior to a photo showing in which his or her picture is used. If any are incarcerated anywhere for any other offense, knowledge of such would appear to be conclusively presumed. An incarcerated suspect would have to be returned to the jurisdiction and site of the crime and an attorney made available for any photo showing in which his (or her) picture might appear.
As in many cases, such a showing may contain photos of several incarcerated suspects. The opinion would appear to require attorneys for all. The criteria for the necessity of an attorney are too unrealistic in my opinion. The police often — perhaps most frequently — focus upon a series or a group of suspects until adequate proofs are gathered to support an information. In order to be on firm ground, under the recent case law of this Court, they would have to make counsel available to each possible suspect in any jail for any other offense.
I do not see any constitutional rights abridged in this case. I do see a policy which, if possible to comply with at all in many cases, at best is impractical and which further impedes the investigative process by inserting new requirements at who knows what additional cost in time and money. All this for doubtful, if any, benefit to the not-yet-accused person.
As the will of the majority prevails, it is recommended that the Court's opinion be prospective in its application.
J.W. FITZGERALD, J., concurred with M.S. COLEMAN, J.
LEVIN, J., did not sit in this case.