
21 Mich. App. 312 (1970)
175 N.W.2d 860
PEOPLE
v.
HUTTON
Docket No. 5,253.
Michigan Court of Appeals.
Decided February 3, 1970.
Rehearing denied March 17, 1970.
Leave to appeal denied June 23, 1970.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, George N. Parris, Prosecuting Attorney, Thaddeus F. Hamera, Chief Appellate Lawyer, and Steven F. Osinski, Assistant Prosecuting Attorney, for the people.
Nicoletti & McCullough, for defendant on appeal.
*317 Before: J.H. GILLIS, P.J., and McGREGOR and V.J. BRENNAN, JJ.
Leave to appeal denied June 23, 1970. 383 Mich 796.
J.H. GILLIS, P.J.
Defendant was convicted by a jury of breaking and entering in violation of MCLA § 750.110 (Stat Ann 1969 Cum Supp § 28.305). His motion for new trial was denied and he appeals. The principal question presented concerns application of the principles enunciated in the identification trilogy, United States v. Wade (1967), 388 US 218 (87 S Ct 1926, 18 L Ed 2d 1149); Gilbert v. California (1967), 388 US 263 (87 S Ct 1951, 18 L Ed 2d 1178), and Stovall v. Denno (1967), 388 US 293 (87 S Ct 1967, 18 L Ed 2d 1199). We have concluded that defendant's conviction must be reversed for error in the admission of evidence identifying defendant as a participant in the crime.
The Facts
On the morning of August 15, 1967, at approximately 4:15 a.m., Dale Kuecken returned home from work. From his apartment window, he observed a car parked in front of a laundromat across the street. Several individuals were scurrying about the building, one of whom was wearing a white T-shirt. Kuecken heard a voice say, "We can't get in," and he saw someone trying to pry open the door. He called the police. Kuecken then heard glass breaking and an alarm ringing, and he saw two persons running toward his side of the street. Kuecken took his shotgun and went outside to stop them. He confronted one individual and ordered him to stop. At the same time, Kuecken observed the second individual running to his left. This second man was wearing a white T-shirt and had sandy, blond hair. Thereafter, Kuecken was struck by a tire iron thrown by the first person who then fled.
The police arrived and Kuecken directed their attention *318 to a car that was driving away from the scene. The police pursued this car, overtook it, and apprehended defendant and two others. When apprehended by the police, defendant was wearing a white T-shirt. The police took the three men to the police station where, approximately an hour after the breaking and entering, they were viewed by Kuecken through a one-way glass panel. At the station, where Kuecken had been brought by the police for the purpose of identifying the suspects, Kuecken identified Gerald Love as the man who had thrown the tire iron. Also, according to his testimony at trial, Kuecken identified defendant Hutton as the man he had seen running to his left.
Defendant and Love were tried together. At trial, Kuecken was asked by the prosecution to make an in-court identification of Love. Counsel for defendants objected and moved for a special record. The defense offered to show that the confrontation at the police station was held in the absence of counsel. It was claimed that the absence of counsel violated defendants' constitutional rights; that testimony of any identifications made at the confrontation could not be admitted; and that a separate record was required in order to determine whether Kuecken could identify either Love or defendant independently of the allegedly illegal confrontation.
The trial court commenced a special record but refused defense counsel's request to continue this record to the point of determining whether the confrontation was illegal and whether in-court identifications of either Love or defendant had sources independent of the police station confrontation. The trial judge was apparently of the view that the issue of independent source was a matter of credibility for the jury. Thereafter, the jury was recalled and on direct examination Kuecken's testimony *319 implied that he recognized defendant Hutton as the man he had seen running to his left at the scene of the crime. Kuecken also testified that he had identified defendant at the police station. Defense counsel objected to this latter testimony on the ground that it had not been shown whether the confrontation was constitutionally held.
The prosecution then called the police officers who had apprehended the fleeing car and taken defendant into custody. The officers related the details of the police station confrontation. The testimony of the officers tended to show that the suspects had been advised of their right to counsel; that they had asked to call an attorney; but that no attorney was present at the confrontation. At the close of the prosecution's case, defense counsel moved that all testimony of identifications made at the confrontation be stricken. On special record, the trial court inquired of Hutton:
"The Court: Did you ask for an attorney?
"The Witness: Yes, sir.
"The Court: When did you ask for an attorney?
"The Witness: At the time we were picked.
"The Court: Now, were you told that there was going to be a lineup or show up?
"The Witness: No sir, we weren't."
The court then ruled that the confrontation at the police station was in violation of defendants' rights. The jury was instructed to disregard the identifications made at the police station.
Defense counsel also moved that Kuecken's in-court identification of Hutton be stricken on the ground that the prosecution had failed to show that Kuecken could identify Hutton independently of the illegal confrontation. Counsel noted: "Here we have the identification of Mr. Hutton, at the closest, I believe 30 feet, running." The court *320 responded: "But isn't that a question of credibility for the jury?" The motion to strike was denied.
Application of the Wade, Gilbert, and Stovall Trilogy
On appeal, defendant contends that the trial court erred in denying his motion to strike Kuecken's in-court identification, since the prosecution failed to establish by clear and convincing evidence that Kuecken's in-court identification was based on observations of Hutton other than those obtained at the police station confrontation. Defendant relies upon United States v. Wade, supra, and the exclusionary rules there adopted. See 388 US at p 240 (87 S Ct at p 1939, 18 L Ed 2d at p 1164). The people contend that the principles enunciated in Wade and companion cases are inapplicable to the facts of this case. It is argued that Hutton was not entitled to counsel at the police station confrontation and that, therefore, the exclusionary rules do not apply.
In United States v. Wade, supra, it was held that the Sixth Amendment guarantees to an accused the right to counsel at pretrial lineups conducted for identification purposes. In the present case it is clear that at the time defendant was identified at the police station he did not have the assistance of counsel. We must therefore consider whether defendant's right to counsel had attached at the time he was identified.
The precise holdings of Wade and Gilbert apply only to post-indictment lineups conducted for purposes of identification. The people seek to distinguish the present case on the ground that no indictment had been filed against Hutton. In light of the rationale of Wade, we cannot agree with this contention. In Wade, the Court noted that a compelled *321 confrontation between the accused and the victim or witnesses to a crime to elicit identification evidence is "riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial." 388 US at p 228 (87 S Ct at p 1933, 18 L Ed 2d at p 1158). Accordingly, it was held that such confrontations constitute a critical stage of the prosecution at which an accused is entitled to counsel. These same dangers were present when Hutton was viewed by Kuecken through the one-way mirror, and we think it clear that counsel's presence was required, notwithstanding the absence of a formal indictment. See People v. Childers (1969), 20 Mich App 639; People v. Fowler (1969), 270 Cal App 717 (76 Cal Rptr 1); People v. Martin (1969), 273 Cal App 724 (78 Cal Rptr 552); Palmer v. State of Maryland (1969), 5 Md App 691 (249 A2d 482). In this regard, we note that in Wade the Court specifically questioned the practice of using one-way mirrors for identification purposes. See United States v. Wade, supra, note 13 at p 230 (87 S Ct at p 1934, 18 L Ed 2d at p 1159). Moreover, many passages of the Wade, Gilbert, and Stovall opinions indicate that the Court did not intend to limit their effect to post-indictment lineups.[1]
The people also contend that the action of the police in this case constituted an in-the-field identification, one wholly different from the confrontations in Wade and Gilbert. The people rely on *322 Commonwealth v. Bumpus (1968), 354 Mass 494 (238 NE2d 343). In Bumpus, a suspect was apprehended by the police within minutes after a robbery and returned to the victim's apartment for identification. The court characterized this on-the-scene identification as a "reasonable confrontation * * * in the course of (or immediately following) a criminal episode," 354 Mass at p 501 (238 NE2d at 347), at which counsel's presence was not required. Wade and Gilbert were held inapplicable in such circumstances. See also Smith v. State of Maryland (1969), 6 Md App 23 (249 A2d 732); United States v. Davis (CA2, 1968), 399 F2d 948; Bates v. United States (1968), 132 App DC 36 (405 F2d 1104); Russell v. United States (1969), 133 App DC 77 (408 F2d 1280).
It is evident from a reading of Bumpus and its siblings that courts are not inclined to hold that all pretrial confrontations require the presence of counsel.[2] For example, in United States v. Davis, supra, p 951, the court observed that it is hard to believe that in Wade the court intended to prevent a police officer from collaring a man fleeing from the scene of an assault and from immediately thereafter asking the victim whether the man was the perpetrator. See also Commonwealth v. Bumpus, supra, at pp 501, 502 (238 NE2d at pp 346, 347). The problem, then, is fashioning an appropriate dividing line between those confrontations which might be characterized as "reasonable," see Commonwealth v. Bumpus, supra, at p 502 (238 NE2d at p 347), notwithstanding an absence of counsel and those which require the presence of an attorney.
We are in accord with the views expressed by Judge Friendly in United States v. Davis, supra, at p 952:
*323 "A clue to the dividing line may be furnished by the Court's repeated use of the term `accused' and its reference in Wade, 388 US at p 225 (87 S Ct 1926, 18 L Ed 2d 1149), to Escobedo v. State of Illinois (1964), 378 US 478 (84 S Ct 1758, 12 L Ed 2d 977). We have particularly in mind the passage in that opinion, 378 US at pp 485, 486 (84 S Ct at p 1762, 12 L Ed 2d 983):
"`[T] he investigation had ceased to be a general investigation of "an unsolved crime" * * *. Petitioner had become the accused, and the purpose of the interrogation was to "get him" to confess his guilt despite his constitutional right not to do so. * * * It would exalt form over substance to make the right to counsel, under these circumstances, depend on whether at the time of the interrogation, the authorities had secured a formal indictment. Petitioner had, for all practical purposes, already been charged with murder.'" (Emphasis supplied.)
At the time of the confrontation in the present case, we think it clear that Hutton had become the "accused." He had been arrested, informed of his rights, taken into custody, and booked. The purpose of the confrontation at the police station was to build a case against the accused by eliciting identification evidence, not to extinguish a case against an innocent bystander. In this regard, it is significant that in Bumpus the court noted that "investigation of the episode was not really over." 354 Mass note 2 at p 500 (238 NE2d note 2 at p 346). On this ground, we think the people's reliance on Bumpus is misplaced.
Additional elements of the confrontation in this case lead us to conclude that counsel's presence was required. The confrontation here occurred at the police station at the direct instance of the police. See People v. Martin, supra, at p 207 (78 Cal Rptr at p 557); Palmer v. State of Maryland, supra, at *324 p 698 (249 A2d at p 487). Compare Bates v. United States, supra, at p 1106 (on-the-spot identification); Russell v. United States, supra, at p 1284 (identification at scene of the crime). That Kuecken viewed Hutton through the one-way mirror was by design rather than by happenstance. Compare Smith v. State of Maryland, supra, at p 31 (249 A2d at p 737). Also, a significant amount of time had elapsed since Kuecken witnessed the breaking and entering. It cannot be said that the confrontation occurred "in the course of (or immediately following) a criminal episode." Commonwealth v. Bumpus, supra, at p 501 (238 NE2d at p 347). (Emphasis supplied.) See also Russell v. United States, supra, note 20 at p 1284. Finally, the record in this case fails to disclose any necessity for an immediate confrontation. See Rivers v. United States (CA 5, 1968), 400 F2d 935, 940.
In summary, we conclude that the police station identification-confrontation constituted a "critical stage" in the proceedings against Hutton. At the time of the mirror viewing Hutton was the accused; as such, he should not have stood alone against the State. United States v. Wade, supra, at p 226 (87 S Ct at p 1932, 18 L Ed 2d at p 1157). Defendant had the right to the presence of counsel at the confrontation and this Sixth Amendment right had attached at the time he was viewed by Kuecken.
The Exclusionary Rules
In Gilbert v. California, supra, the Supreme Court sought to ensure recognition of the right to counsel at confrontations like that in the present case by adopting certain exclusionary rules. One such rule is that all testimony of identifications made at an illegal confrontation offered on behalf of the prosecution is per se inadmissible. 388 US at p 273 *325 (87 S Ct at p 1957, 18 L Ed 2d at p 1186). Since defendant Hutton was not afforded counsel at the police station confrontation, Kuecken's testimony that he identified Hutton at the confrontation was inadmissible at trial. "That testimony [was] the direct result of the illegal lineup `come at by exploitation of [the primary] illegality.'" Gilbert v. California, supra, at p 272, 273 (87 S Ct at p 1956, 1957, 18 L Ed 2d at p 1186), quoting Wong Sun v. United States (1963), 371 US 471, 488 (83 S Ct 407, 417, 9 L Ed 2d 441, 455). The trial court should not have permitted Kuecken to so testify in the presence of the jury. In this regard, defense counsel's request for a separate record in order to determine the legality of the confrontation was well taken. In the future such requests, if timely made, should be honored. Once a claim of an illegal confrontation is raised, an evidentiary hearing should be held to determine the merits of the claim, and this hearing should be held outside the presence of the jury. See People v. Childers, supra.
Not all testimony identifying a defendant as the perpetrator of a crime is rendered inadmissible by the per se exclusionary rule fashioned in Gilbert, however. An in-court identification may still be made if, but only if, the prosecution is first able to "establish by clear and convincing evidence that the in-court identification [is based] upon observations of the suspect other than the lineup identification." United States v. Wade, supra, at p 240 (87 S Ct at p 1939, 18 L Ed 2d at p 1164). Again, this showing is one which must be made outside the presence of the jury. A preliminary hearing should be held in order to resolve the issue of independent source, thereby determining the admissibility of any proffered in-court identification. And, contrary to the views of the trial court in this case, the issue *326 of independent source is, in the first instance, a question for the court, even though that question involves issues of fact. See Stovall v. Denno, supra, at pp 299, 300 (87 S Ct at p 1973, 18 L Ed 2d at p 1205). Once the trial court determines that an in-court identification is admissible, the jury should then be limited to determining the truthfulness, i.e., weight and credibility, of any testimony identifying defendant as the perpetrator. Cf. People v. Walker (On Rehearing, 1965), 374 Mich 331, 338.
In determining whether a witness' in-court identification is admissible, the trial court is to apply the test quoted in Wong Sun v. United States, supra, at p 488 (83 S Ct at p 417, 9 L Ed 2d at p 455):
"`[W]hether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.'"
United States v. Wade, supra, at p 241 (87 S Ct at p 1939, 18 L Ed 2d at p 1165). And among the factors to be considered in applying this test are: the witness' prior opportunity to observe the alleged criminal act; the existence of any discrepancy between any pretrial description and the defendant's actual appearance; any identification of another person before confrontation; photogenic identification before confrontation; failure to identify the defendant on a prior occasion; and the lapse of time between the alleged act and the confrontation identification. United States v. Wade, supra, at p 241 (87 S Ct at p 1939, 18 L Ed 2d at p 1165). No doubt, the witness will be asked whether he could identify the defendant at trial had he not seen him at the deficient pretrial confrontation. Any uncertainty in the witness' response is also, we think, a relevant factor. See United States v. Trivette (D DC, 1968), *327 284 F Supp 720, 724; Clemons v. United States (1968), 133 App DC 27 (408 F2d 1230, 1242). The trial court should thus consider the witness' own testimony and all other evidence which supports, or undermines, the assertion of an identification "purged of the primary taint." If the court determines that an identification at trial is capable of standing on its own, we think it advisable for the court to state on the record what evidence it believes justifies admission of the in-court identification. An appellate court is then in a better position to review alleged errors in the admission of such identifications.
Where, as in this case, the admission of an in-court identification is challenged, meaningful appellate review requires that the reviewing court reach one of the following conclusions. If it appears from the record by clear and convincing evidence that the in-court identification was not tainted by the prior identification or if the evidence shows beyond a reasonable doubt that admission of that identification was harmless, and there is otherwise no error, the conviction will be affirmed. See People v. Love (1969), 18 Mich App 228; People v. Wilson (1969), 20 Mich App 410; People v. Childers, supra; People v. Bratton (1969), 20 Mich App 523; People v. Nugent (1969), 21 Mich App 58; People v. Martin, supra. If it can be determined from the record that the in-court identification was tainted and that it does not appear harmless beyond a reasonable doubt, the conviction will be reversed. See People v. Menchaca (1968), 264 Cal App 2d 642 (70 Cal Rptr 843); People v. Colabella (1969), 31 App Div 2d 827 (298 NYS2d 40); People v. Hill (1969) 32 App Div 2d 966 (303 NYS2d 14); Mason v. United States (1969), 134 App DC 280 (414 F2d 1176). If the record does not permit an informed judgment *328 that the in-court identification had an independent source, or was harmless beyond a reasonable doubt, the case will be remanded for an evidentiary hearing. See United States v. Wade, supra; People v. Ballott (1967), 20 NY2d 600 (286 NYS2d 1). In each of the above postures, the reviewing court in reaching its conclusion will independently scrutinize the record, giving customary weight to the findings of the trial court. See People v. Nugent, supra.
Finally, where, as here, identifications made at an illegal confrontation are erroneously admitted into evidence, an appellate court must determine whether the error was harmless. See Gilbert v. California, supra; People v. Childers, supra.
In this case, unlike the situation in Wade, see 388 US at p 242 (87 S Ct at p 1940, 18 L Ed 2d at p 1166), the issue of independent source was fully litigated at trial. The record on appeal thus permits this Court to make an informed judgment as to whether Kuecken's in-court identification of defendant Hutton had an independent origin. Compare United States v. Wade, supra, at p 242 (87 S Ct at p 1940, 18 L Ed 2d at p 1166); Gilbert v. California, supra, at p 272 (87 S Ct at p 1956, 18 L Ed 2d at p 1186).
On direct examination, Kuecken's testimony implied that he recognized defendant Hutton as the man he had seen running to his left at the scene of the crime. We think the following testimony could reasonably have been so construed by the jury.
"Q. Now, do you see the party here that was wearing the white T-shirt?
"A. Yes, sir.
"Q. And who is that?
"A. Mr. Hutton.
*329 "Q. Mr. Hutton. Now, had you ever seen any of these two parties in the courtroom before this incident?
"A. No, sir, I hadn't."
On cross-examination, Kuecken testified that he was sure Hutton was the man he had seen running to his left. Further questioning, however, revealed the basis of Kuecken's in-court identification. When asked how he was so sure, Kuecken replied: "I said it before and I probably say it again that's the fellow they had down at the police station." Defense counsel continued:
"Q. Right, that's the only reason you know as far as his identification, is that he was at the police station, is that correct?
"A. Yes, and that they picked him up in the car and he was one of the fellows that ran across the street.
"Q. As far as your identification goes you're sure that Mr. Hutton was in that police station?
"A. He was in the police station, yes.
"Q. But you are not sure that he was involved in a crime?
"A. I am very sure, yes.
"Q. How are you so sure?
"A. By the description.
"Q. In other words, you are basing your sureness on a white T-shirt?
"A. Yes.
"Q. How long did you see Mr. Hutton?
"A. Briefly.

* * *
"Q. So you saw Mr. Hutton out of the corner of your eye?
"A. I looked at him.
"Q. And he got as close as thirty feet?
"A. I would say.
*330 "Q. And you saw him from five to ten seconds?
"A. Yes.
"Q. And that is what you are basing your identification on?
"A. That is the same man I saw across the street."
Again, Kuecken was asked how he was so sure, and he replied: "By the same clothes. I didn't get a look at his face." Defense counsel then asked: "Could you identify Mr. Hutton if you had never seen him between the crime and today?" Kuecken responded: "I don't think so."
We think it clear that the record fails to show "by clear and convincing evidence that the in-court identification [was] based upon observations of the suspect other than the [illegal confrontation] identification." United States v. Wade, supra, at p 240 (87 S Ct at p 1939, 18 L Ed 2d at p 1164). We reach this conclusion for three reasons. First, Kuecken's opportunity to observe the man wearing a white T-shirt at the scene was limited. Compare People v. Wilson, supra; People v. Childers, supra; People v. Bratton, supra; People v. Nugent, supra. By his own testimony, Kuecken did not see defendant's face  an admission which on this record undermines the assertion of an identification purged of the primary taint. Cf. People v. Menchaca, supra. There was nothing particularly outstanding in Hutton's size or build which would permit an identification notwithstanding a failure to observe his face. Although Kuecken testified that the man he saw running to his left wore a white T-shirt and had sandy, blond hair, these observations alone are, we think, insufficient to permit a positive identification. See People v. M (1969), 32 App Div 2d 732 (302 NYS2d 156).[3]
*331 Second, the record reveals that Kuecken failed to identify Hutton on an occasion before trial. Compare People v. Childers, supra. The occasion was the confrontation itself. Although on direct examination Kuecken testified that he pointed to Hutton at the police station, he later testified that he was able to identify Hutton at the confrontation only by his white T-shirt and color of hair  features which alone, we feel, are too sketchy to permit a positive identification. Moreover, Officer Young, who attended the confrontation. testified that Kuecken could only identify Gerald Love, although he was given the opportunity to observe three suspects. Nothing was said about the other two, including Hutton. Under these circumstances,
"Since we cannot say that the [confrontation] identification most probably rested on an independent basis, we can hardly find `clear and convincing evidence' of such an independent source for the subsequent in-court identification." Mason v. United States, supra, at p 1182.
Finally, Kuecken by his own testimony stated that he did not think he could identify Hutton at trial had he not seen him at the illegal confrontation. We hold that this testimony, even if fully credited, was legally insufficient to permit an in-court identification to reach the jury. Cf. United States v. Trivette, supra; Clemons v. United States, supra.
We conclude that it was error for the jury to hear testimony implying that Kuecken recognized Hutton at trial as one of the men he observed at the scene *332 of the crime. One issue remains. Was the admission of Kuecken's identification testimony harmless error? Unless we are able to declare a belief beyond a reasonable doubt that the erroneous admission of such evidence did not contribute to Hutton's conviction, we must reverse. Chapman v. California (1967), 386 US 18 (87 S Ct 824, 17 L Ed 2d 705).
At trial, the sole issue left to the jury was the question of identification. The only direct evidence that placed Hutton at the scene of the crime was Kuecken's testimony that he identified Hutton at the police station and that he recognized Hutton at trial. Given the overwhelming importance of the witness' identification of Hutton, we cannot say that Kuecken's identification testimony did not contribute to defendant's conviction. Although the circumstantial evidence connecting defendant with the crime was substantial, still we are unable to declare that the tainted identification testimony was harmless beyond a reasonable doubt. We reverse, notwithstanding the trial court's instruction to the jury to disregard the confrontation identification. The damage had been done and,
"There are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to defendant, that the practical and human limitations of the jury system cannot be ignored."
Bruton v. United States (1968), 391 US 123, 135 (88 S Ct 1620, 1627, 20 L Ed 2d 476, 485).
Our disposition makes it unnecessary to consider defendant's other contentions. They are either unlikely to arise on retrial or will emerge in a greatly altered context of evidence.
Defendant's conviction is reversed and the case is remanded for new trial.
All concurred.
NOTES
[1]  "In sum, the principle of Powell v. Alabama and succeeding cases requires that we scrutinize any pretrial confrontation of the accused to determine whether the presence of his counsel is necessary to preserve the defendant's basic right to a fair trial as affected by his right meaningfully to cross-examine the witnesses against him and to have effective assistance of counsel at the trial itself." United States v. Wade (1967), 388 US 218, 227 (87 S Ct 1926, 1932, 18 L Ed 2d 1149, 1157). (Emphasis supplied.) And see Stovall v Denno (1967), 388 US 293, 298 (87 S Ct 1967. 1971, 18 L Ed 2d 1199, 1204).
[2]  But see Rivers v. United States (CA 5, 1968), 400 F2d 935, 939.
[3]  A witness testified at a suppression hearing that her main observation of defendant was of his boots and seeing him from the rear. She never saw him face to face. The trial court ruled that her view was too limited and that, as a matter of law, her identification testimony was inadmissible at trial. Despite this exclusionary ruling, the trial judge permitted the witness to identify defendant at trial and found that her identification was positive and definite. The appellate court held it was error to receive and credit such identification testimony.
