
    PEOPLE v ANDERSON
    Opinion of the Court
    1. Criminal Law — Custody—Lineup—Identification—Photographs —Attorney and Client.
    The fact of custody, not the place or reason for the custody, requires implementation of the rule that there should be no photo showing if a corporeal lineup could be held and that the right of a person in custody to counsel at a photo showing is not diminished where a corporeal lineup could not be held for reasons such as: (1) it is not possible to arrange a proper lineup, (2) there are insufficient number of persons available with defendant’s physical characteristics, (3) the nature of the case requires immediate identification, (4) the witnesses are at a place far distant from the location of the in-custody accused, (5) the subject refuses to participate in a lineup and by his actions would seek to destroy the value of the identification.
    2. Criminal Law — Pretrial Identification — Photographs—Attorney and Client — Evidentiary Hearing — Remand.
    A criminal case should be remanded to the trial court for an evidentiary hearing where five of the witnesses who identified defendant at trial had previously identified him at photo showings that were held while he was in custody in connection with another offense and he was not represented by counsel at the showings.
    3. Criminal Law — Sentences—Appeal and Error — Constitutional Law.
    Trial judge erred in taking into consideration at the time of sentencing his personal impression that defendant was protecting a codefendant; defendant 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 (US Const, Am V).
    
      References for Points in Headnotes
    
       21 Am Jur 2d, Criminal Law §§ 240, 263.
    
       21 Am Jur 2d, Criminal Law §§ 368, 369.
    
       21 Am Jur 2d, Criminal Law §§ 533, 572.
    
       21 Am Jur 2d, Criminal Law §§ 582, 587.
    
      4. Criminal Law — Sentences—Juvenile Record.
    A sentencing judge may consider the juvenile record of a defendant at the time of sentencing.
    Dissenting Opinion
    M. S. Coleman and J. W. Fitzgerald', JJ.
    5. Criminal Law — Attorney and Client — Photographs—Identification — Witnesses—Constitutional Law.
    
      Case which was in a purely investigative stage falls within rules of United States Supreme Court decisions, that the presence of counsel is not required at events prior to the beginning of adversary criminal proceedings and that the presence of counsel is not required when photographic displays are used for identiñcation purposes, where witnesses were shown photographs while defendant was in jail in another jurisdiction on . another charge but had become a suspect in the instant case and ñve identified defendant; adoption of those rules would promote efficient criminal investigation while preserving the rights of all citizens; no constitutional rights were abridged in this case.
    
    Appeal from Court of Appeals, Division 1, Levin, P. J., and Bronson and Van Valkenburg, JJ., remanding with instructions Recorder’s Court of Detroit, Henry L. Heading, J.
    Submitted January 11, 1974.
    (No. 1
    January Term 1974,
    Docket No. 54,307.)
    Decided April 16, 1974.
    42 Mich App 10 affirmed in part and reversed in part.
    James L. Anderson was convicted of armed robbery. Defendant appealed to the Court of Appeals. Remanded with instructions. The people appeal.
    Affirmed in part, reversed in part and remanded to the trial court for an evidentiary hearing.
    
      Frank J. Kelley, Attorney General, Robert A. 
      
      Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Gerard A. Poehlman, Assistant Prosecuting Attorney, for the people.
    
      State Appellate Defender Office (by John B. Phelps), for defendant on appeal.
   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.

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 NW2d 461 (1973) and People v Jackson, 391 Mich 323; 217 NW2d 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 US 682; 92 S Ct 1877; 32 L Ed 2d 411 (1972) and United States v Ash, 413 US 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.  