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PEOPLE v. ADAMS
People v. Adams, Docket No. 5,878 — Michigan Court of Appeals (Aug. 28, 1969)
Factual and Procedural Background
The defendant, Earl E. Adams, was convicted in the Recorder's Court of Detroit of armed robbery (MCLA § 750.529). The victims were accosted in their home and both were shot in the head; they survived. The identity of two assailants was known to the victims. One participant voluntarily surrendered and named the defendant and others as participants. The defendant and others were arrested two days after the crime; Polaroid photographs of those arrested were taken immediately and shown, together with photographs of persons not implicated, to the hospitalized victims two or three hours after the arrests. The victims identified the defendant at that time and again at trial. The only issue raised on appeal concerned the propriety of showing the photographs to the victims without the presence of defense counsel. The Court of Appeals affirmed the conviction.
Legal Issues Presented
- Whether it was improper to exhibit photographs of the defendant to the victims without the presence of counsel for the defendant (i.e., whether the pretrial exhibition-of-photographs stage is a "critical" stage requiring the defendant's right to counsel).
Arguments of the Parties
Appellant's (Defendant's) Arguments
- Appellate counsel argued that the exhibition-of-photographs stage is as critical as a lineup, and therefore a person upon whom investigation has focused is entitled to counsel when photographs are exhibited.
People's (Prosecution's) Position
- The prosecutor conceded (as noted in the People's brief) that the pretrial photographic identification stage is as critical as the lineup stage, and agreed that where the defendant is in custody identification by means of a police lineup should be attempted (citing People v. Rowell).
- At trial, however, the prosecution pointed to exigent circumstances (the victims' serious injuries and hospitalization) as possibly justifying the prompt exhibition of photographs without counsel; the record did not definitively show whether officers had a reasonable concern regarding the victims' recovery.
Trial Counsel's Conduct
- Trial counsel for the defendant did not object at trial either to the in-court identification testimony or to admission of the photographs on the ground that the defendant lacked counsel when the photographs were exhibited.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| People v. Rowell (1969), 14 Mich. App. 190 | Recognized in the People's brief as supporting that pretrial photographic identification is as critical as a lineup and that a lineup should be attempted where defendant is in custody. | The court noted the People's concession (via their brief) acknowledging the equivalence of photographic exhibitions and lineups; it considered this in framing the issue but relied on procedural considerations (failure to object and possible exigent circumstances) to affirm. |
| United States v. Wade (1967), 388 U.S. 218 (87 S Ct 1926, 18 L Ed 2d 1149) | Establishes that certain identification procedures (lineups) are "critical" stages implicating the right to counsel. | The court accepted that Wade's and Gilbert's principles bear on the question whether photographic exhibitions are critical; however, because trial counsel failed to object and because exigent circumstances might have justified the exhibition, the court found no error in this case. |
| Gilbert v. California (1967), 388 U.S. 263 (87 S Ct 1951, 18 L Ed 2d 1178) | Addresses confrontation and identification issues related to pretrial identification procedures and the defendant's rights. | The court treated Gilbert together with Wade as authority for the proposition that pretrial identification procedures can be critical; nonetheless, on the record before it (no timely objection and possible exigency), the court affirmed. |
| Thompson v. State (1969), ___ Nev ___ (451 P.2d 704) | Listed among authorities dealing with photographic or pretrial identification issues. | The court cited Thompson as part of the broader reported treatment of photographic identification questions but did not rely on it as dispositive in affirming; procedural grounds controlled. |
| United States v. Marson (CA 4, 1968), 408 F.2d 644, certiorari denied (1969), 393 U.S. 1056 (89 S Ct 695, 21 L Ed 2d 698) (Winter, J., dissenting) | Majority: pre-Wade photographic identification of a defendant already in custody did not deny due process. Dissent: Wade and Gilbert principles should apply to photographic exhibitions as well as to lineups. | The court recited Marson's division: a majority upholding pre-Wade photo IDs and a dissent urging application of Wade/Gilbert to photographic exhibitions. The opinion used Marson to illustrate differing approaches but affirmed on the specific record-based grounds discussed. |
| Cox v. State (Fla, 1969), 219 So.2d 762, 764, 765 | Held it was error to exhibit to a victim a videotape of the defendant taken while he was in custody without the presence of counsel for the defendant. | The court noted Cox as an example of a jurisdiction treating pretrial audiovisual exhibitions without counsel as erroneous; it acknowledged such authority while affirming here because of the trial record and exigent-circumstances considerations. |
| Commonwealth v. Geraway (1969), ___ Mass. ___ (245 N.E.2d 423) | Listed as an authority with a possibly contrasting approach to pretrial identification without counsel. | The court mentioned Geraway among cases reaching different conclusions; it did not adopt Geraway's approach as controlling in this case. |
| McGee v. United States (CA 10, 1968), 402 F.2d 434, 436 | Listed as an authority concerning pretrial identification procedures. | The court noted McGee as part of the body of decisions addressing photographic or pretrial identification; it did not rely on McGee to reverse the conviction. |
| Stovall v. Denno (1967), 388 U.S. 293 (87 S Ct 1967, 18 L Ed 2d 1199) | Holds that a defendant was not denied due process when taken to a hospital without counsel to be viewed by a seriously injured victim who could not attend a lineup and might not recover — an exigent-circumstances exception. | The court relied on Stovall to support the proposition that exigent circumstances (seriously injured, hospitalized victims who might not recover) might justify displaying photographs without defense counsel; this reasoning helped justify affirmance in the absence of a timely objection. |
| Simmons v. United States (1968), 390 U.S. 377, 385 (88 S Ct 967, 19 L Ed 2d 1247) | Recognizes the police need, in some circumstances, to determine without awaiting recovery of the victim whether their investigation is on the right track. | The court observed that the police in this case had the same need identified in Simmons to determine promptly whether they were on the right track; that practical need supported the view that exigent circumstances might justify prompt exhibition of photographs. |
Court's Reasoning and Analysis
The court's analysis proceeded from the factual record: photographs of those arrested were taken immediately after arrest and shown to seriously wounded, hospitalized victims two or three hours after arrest; the victims identified the defendant then and at trial. The court acknowledged the central legal contention (accepted by the prosecutor) that photographic exhibitions are as critical as lineups and thus raise counsel-rights concerns (citing Wade and Gilbert).
However, the court emphasized procedural posture: trial counsel did not timely object at trial to the admission of the photographs or to the in-court identifications on the ground that counsel had been absent when the photographs were shown. The court held it was not justified in excusing the requirement of a timely trial objection because such an objection would have given the prosecutor an opportunity to demonstrate a substantial basis for believing the photographs needed to be exhibited immediately (for example, because of the seriousness of the victims' injuries).
The court further reasoned that the exigencies of the case — victims hospitalized with serious wounds and possibly unable to attend a lineup — might have justified displaying photographs in the absence of defense counsel, relying on Stovall for the proposition that hospital-viewing of a defendant without counsel did not necessarily deny due process. The court also noted the police need, as discussed in Simmons, to determine promptly whether their investigation was on the right track. Taking the record and these considerations together, and given the absence of a timely objection, the court concluded there was no reversible error.
Holding and Implications
Holding: The conviction of Earl E. Adams for armed robbery was Affirmed.
Implications:
- The direct effect: the defendant's conviction and the trial court's admission of the identification evidence are upheld on the record presented.
- The opinion emphasizes procedural requirements: a defendant's right to contest pretrial photographic identifications at trial depends in part on timely objection; failure to object deprived the prosecution of the opportunity to justify an exigent exhibition.
- The court recognized existing Supreme Court authority (Wade, Gilbert, Stovall, Simmons) and competing lower-court decisions on photographic exhibitions; it indicated that exigent circumstances (seriously injured, hospitalized victims) may justify showing photographs without counsel, but reached its result primarily on the record-specific combination of exigency and lack of timely objection. The opinion does not announce a new, broad rule beyond the application to these facts.
Disposition: Affirmed. All concurred.
LEVIN, J.
The defendant was convicted of armed robbery. MCLA § 750.529 (Stat Ann 1954 Rev § 28.797). The victims were accosted in their home and both were shot in the head. They survived their wounds. The identity of two of the assailants was known to the victims. One of the assailants voluntarily surrendered; he gave the police the names of the defendant and of other persons and said that they had also participated in committing the crime.
The defendant and others were arrested two days after the crime was committed. Polaroid pictures of those arrested were taken immediately and these, together with photographs of persons not implicated, were shown to the hospitalized victims two or three hours after the arrest. They identified the defendant as one of their assailants and, later, at the trial, identified him again.
The only issue raised on appeal concerns the propriety of showing the photographs to the victims without the presence of counsel for the defendant. We find no error.
Defendant's appellate counsel argues and the prosecutor concedes that the exhibition-of-photographs stage is as critical as the lineup stage. It is contended, therefore, that one upon whom an investigation has focused is entitled to be represented by counsel at the time photographs are exhibited.
The People's brief acknowledges:
"The appellee agrees that the pretrial photographic identification stage is as critical as the lineup stage. The appellee is also in agreement with the view that, where the defendant is in custody, identification by means of a police lineup should be attempted. People v. Rowell (1969), 14 Mich. App. 190."
See United States v. Wade (1967), 388 U.S. 218 ( 87 S Ct 1926, 18 L Ed 2d 1149); Gilbert v. California (1967), 388 U.S. 263 ( 87 S Ct 1951, 18 L Ed 2d 1178); Thompson v. State (1969), ___ Nev ___ ( 451 P.2d 704); United States v. Marson (CA 4, 1968), 408 F.2d 644, certiorari denied (1969), 393 U.S. 1056 ( 89 S Ct 695, 21 L Ed 2d 698) (Winter, J., dissenting).
In the Marson case a majority of the court concluded that a pre- Wade photographic identification of a defendant already in custody did not deny the defendant due process. The dissenting judge would have applied Wade's and Gilbert's principles to the case there at bar as a reward to the (p 654) "diligence and astuteness of defendant's counsel [in advancing] a constitutional contention, not obvious on its face and not a simple application of Wade and Gilbert." The dissenting judge observed (p 653):
"I cannot read Wade and Gilbert to express considerations substantially less applicable to identification by the exhibition of photographs than to identification by exhibition of the person."
In Cox v. State (Fla, 1969), 219 So.2d 762, 764, 765, the Florida Court of Appeals held that it was error to exhibit to the victim a video tape of the defendant taken while he was in custody without the presence of counsel for the defendant.
But of. Commonwealth v. Geraway (1969), ___ Mass. ___ ( 245 N.E.2d 423); McGee v. United States (CA 10, 1968), 402 F.2d 434, 436.
However, trial counsel for the defendant did not voice an objection either to the in-court identification testimony or to the admission in evidence of the photographs on the ground that the defendant was not represented by counsel at the time they were exhibited. The record presented does not show whether at the time the photographs were exhibited the investigating officers had any reasonable concern regarding the ultimate recovery of the victims. One of the victims was shot in the area of the left temple, the other in the back of the neck. Both remained in the hospital for five or six days after the pictures were shown to them.
We are not justified in dispensing with the requirement of timely objection at trial; timely objection would have given the prosecutor an opportunity to show, if he could, that there was a substantial basis for believing that the photographs needed to be exhibited without delay because of the seriousness of the victims' injuries. The exigencies of the case, the victims being hospitalized with serious injuries, might have justified the display of photographs in the absence of counsel for the defendant. See Stovall v. Denno (1967), 388 U.S. 293 ( 87 S Ct 1967, 18 L Ed 2d 1199), where the United States Supreme Court ruled that a defendant was not denied due process when he was taken to a hospital without counsel to be viewed by one of the victims who, as here, had been seriously injured and was unable to attend a lineup, and who, it was feared, might not recover.
We also observe that in this case the police had the same need as did the police in Simmons v. United States (1968), 390 U.S. 377, 385 ( 88 S Ct 967, 19 L Ed 2d 1247), to determine without awaiting the recovery of the victim "whether they were on the right track."
Affirmed.
All concurred.
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