PEOPLE v. ROBERSON

J.H. GILLIS, P.J.

On March 28, 1973 defendant was found guilty by a jury of armed robbery, MCLA 750.529; MSA 28.797, and assault with intent to murder, MCLA 750.83; MSA 28.278. He was sentenced to 25 to 50 years in prison and appeals as of right.

Beecher's Ladies Apparel store in Genesee Township was the scene of a December 13, 1972 armed robbery. At trial the three persons in the store at the time — two sales clerks, Judy Rose and Myrtle Hougland, and Miss Rose's boyfriend, James Powell — identified defendant as the robber. Each of these eyewitnesses had previously identified defendant at a post-custodial, pretrial photographic display. Roberson argues that his armed robbery conviction must be reversed because he was not represented by counsel at these displays. See People v Franklin Anderson, 389 Mich. 155; 205 N.W.2d 461 (1973); People v Jackson, 391 Mich. 323; 217 N.W.2d 22 (1974); People v James Anderson, 391 Mich. 419; 216 N.W.2d 780 (1974). The prosecution argues that, even if it was error to conduct the photographic identification proceeding in the absence of defendant's attorney, the error was harmless.

"Harmless error" is one of the more frequently utilized bases for appellate court affirmance of criminal convictions. Unfortunately, there is a considerable lack of understanding by the judiciary as to what constitutes "harmless error".

First, it must be understood that presently there are two separate standards in Michigan for determining what is harmless error, one for nonconstitutional errors and another for Federal constitutional errors. If the error is nonconstitutional, i.e., merely an error in the application of a rule of evidence or procedure, we do not reverse unless the error "deprived the defendant of substantial rights or resulted in a miscarriage of justice". People v Reed, 17 Mich. App. 696, 698; 170 N.W.2d 303, 304 (1969); see MCLA 769.26; MSA 28.1096, GCR 1963, 529.1; People v Ritholz, 359 Mich. 539; 103 N.W.2d 481 (1960); People v Ogg, 26 Mich. App. 372; 182 N.W.2d 570 (1970). However, if the error alleged to be harmless is of constitutional magnitude, we must ask two questions. "First, is the error so offensive to the maintenance of a sound judicial process that it never can be regarded as harmless?" People v Wichman, 15 Mich. App. 110, 116; 166 N.W.2d 298, 302 (1968). Second, if not so offensive, can the court "declare a belief that it was harmless beyond a reasonable doubt". Chapman v California, 386 U.S. 18, 24; 87 S Ct 824, 828; 17 L Ed 2d 705 711 (1967). We think it fair to say that the standard for reviewing nonconstitutional errors is less demanding than the standard for reviewing constitutional errors, in the sense that the "miscarriage of justice" test will tolerate more serious errors. Is there a rational basis for the constitutional-nonconstitutional dichotomy? We think not.

Dissenting in Fahy v Connecticut, 375 U.S. 85, 94; 84 S Ct 229, 234; 11 L Ed 2d 171, 177 (1963), Mr. Justice Harlan said:

"It is obvious that there is no necessary connection between the fact that evidence was unconstitutionally seized and the degree of harm caused by its admission. The question of harmless error turns not on the reasons for inadmissibility but on the effect of the evidence in the context of a particular case." See Saltzburg, The Harm of Harmless Error, 59 Va L R 988, 1025 (1973). Erroneously admitted nonconstitutional evidence may often be more prejudicial than erroneously admitted constitutional evidence.

The alleged error here — denial of defendant's right to counsel at a photographic identification proceeding — is not error of constitutional magnitude. In United States v Ash, 413 U.S. 300; 93 S Ct 2568; 37 L Ed 2d 619 (1973), the Supreme Court held that the right-to-counsel guarantee of the Sixth Amendment does not extend to photographic displays. Subsequently, in People v Jackson, 391 Mich. 323, 338-339; 217 N.W.2d 22, 27-28 (1974), the Michigan Supreme Court ruled that:

"[B]oth before and after commencement of the judicial phase of a prosecution, a suspect is entitled to be represented by counsel at a corporeal identification or a photographic identification unless the circumstances justify the conduct of an identification procedure before the suspect can be given an opportunity to request and obtain counsel and that, except in exigent circumstances, photographs of a suspect known to be in custody or who can readily be produced for a lineup may not be displayed to witnesses. After due consideration of * * * Ash * * * we adhere to this view because we are of the opinion that generally the best evidence of whether an eyewitness can identify a suspect is his response at a fairly conducted lineup unaffected by an earlier showing of photographs of the suspect.

"Accordingly, in the exercise of our constitutional power to establish rules of evidence applicable to judicial proceedings in Michigan courts and to preserve best evidence eyewitness testimony from unnecessary alteration by unfair identification procedures, the principles developed in and following the announcement of Wade, as to corporeal identifications, and Anderson, as to photo showings, shall govern the receipt in evidence of identification testimony where the witness has viewed or seen photographs of the suspect without regard to when the judicial phase of the prosecution is commenced." (Emphasis supplied.)

The Anderson case referred to in, and affirmed by, Jackson is People v Franklin Anderson, supra. A pre- Ash decision, People v Franklin Anderson represents the conclusion of our Supreme Court, as expressed by Justice WILLIAMS, that the United States Constitution gives an accused a right to counsel at photographic displays. Thus, in 1973 our photographic identification rule was of constitutional magnitude and now, in 1974, it is not. But the fact remains, the rule is the same. Obviously, United States v Ash, supra, has not made a 1974 violation of this rule per se any less serious than a 1973 violation. Equally obvious, the harmless error standard to be utilized in the review of these violations should not be automatically determined by United States Supreme Court decisions.

We think there should be one harmless error standard applicable to all errors in criminal cases, regardless of their classification. And of the two standards discussed herein, we think the Wichman-Chapman standard is the better. It seems to us that in its practical application, the "miscarriage of justice" standard permits appellate courts to "sweep under the carpet" errors which may well have played a significant role in the fact trier's decision to convict. The "miscarriage of justice" standard sounds very much like a "shocks the judicial conscience" type standard. A criminal defendant on appeal should not have to shock our conscience in order to secure for himself those rights which the Legislature and courts of this state have determined that he should have. However, the "miscarriage of justice" standard is statutory. MCLA 769.26; MSA 28.1096. If it is applicable to the facts of this case, we are bound to apply it.

"Miscarriage of justice" is applicable to "misdirection of the jury, improper admission or rejection of evidence", and errors in "pleading or procedure". MCLA 769.26; MSA 28.1096. Is the rule that a defendant has a right to counsel at a photographic identification proceeding the type of evidentiary or procedural rule contemplated by the legislature when they adopted "miscarriage of justice"? We do not think so. This rule is designed to preserve "eyewitness testimony from unnecessary alteration by unfair identification procedures". Jackson, supra, 391 Mich. 338-339; 217 N.W.2d 27. Its violation is error with an inherent tendency to undermine the reliability and detract from the integrity of the guilt determination process. It seems to us that a conviction which is tainted with such a violation is highly suspect and should be reviewed by a standard more demanding than "miscarriage of justice". Accordingly, we hold that where the error is a denial of defendant's right to counsel at a photographic display, that error shall not be held harmless, unless the court is able to declare that it was "harmless beyond a reasonable doubt".

Thus, our question becomes: Assuming it was error to conduct the three photographic identification proceedings in the absence of defendant's counsel, was the error harmless beyond a reasonable doubt, i.e., were the proofs, aside from the taint of the error, so overwhelming that all reasonable jurors would find guilt beyond a reasonable doubt? We hold that if this was error, it was harmless.

Uncontroverted and untainted evidence indicates the following: Early in the evening of December 13, 1972, Deputy Sheriff Harry Kerlin was parked in an unmarked squad car in the vicinity of Beecher's Ladies Apparel and other stores. Deputy Kerlin was on surveillance assignment in regard to a number of recent holdups in the area. At approximately 6:45 p.m. Kerlin observed defendant drive up and park his car on the street. Defendant got out of the vehicle, and flipped down his rear license plate. He was apparently trying to hold it down, but it kept coming back up. Defendant then walked out of Kerlin's view.

Miss Rose, one of the store clerks, testified that the robber came into the store and placed a woman's coat on layaway. She wrote up a layaway ticket, giving one-half the ticket to the robber and retaining the other half. The robber then started to leave the store. But he stopped, pulled a gun, took money from the cash register and fled. The three persons inside the store all testified that the robbery occurred between 6:45 and 7 p.m.

Deputy Kerlin testified that he became suspicious when, at about 6:55 p.m., he observed defendant run toward his car, get in and speed away. With Kerlin following in his unmarked car, defendant ran several stop signs and a red light, finally driving his automobile into a ditch. After Kerlin identified himself as a police officer, defendant fired two shots. An exchange of gunfire followed, defendant finally being wounded and captured.

Police searched Roberson and found $246 and a layaway card from Beecher's Ladies Apparel. Miss Rose identified the layaway card as the one she had given the robber. The store owner, Mr. Rosenfelt, testified that he went to his store shortly after the robbery and computed that $246.25 had been stolen. In addition, Myrtle Hougland identified one of the $5 bills found on defendant as a bill that had been in the store's cash register. She testified that she recognized the bill because someone had colored Abraham Lincoln's shirt pink.

We think this evidence is so overwhelming that, even if there had been no identification testimony from the three robbery eyewitnesses, all reasonable jurors would have found guilt beyond a reasonable doubt. Defendant's convictions are affirmed.

ALLEN, J., concurred.