PEOPLE OF MI V FRED M WHEELER
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
July 14, 2000
Plaintiff-Appellee,
v
No. 208847
Oakland Circuit Court
LC No. 97-152821-FC
FRED M. WHEELER,
Defendant-Appellant.
Before: Griffin, P.J., and Holbrook, Jr. and J.B. Sullivan,* JJ.
PER CURIAM.
Defendant appeals as of right from a jury conviction of unarmed robbery, MCL 750.530; MSA
28.798, for which he was sentenced to two years’ probation with the first six months in jail. We affirm,
but remand for correction of the judgment of sentence.1
Defendant contends that the prosecutor should not have been allowed to introduce evidence of
a photographic lineup because defendant was readily available for a corporeal lineup. Aside from the
fact that defendant failed to preserve this issue by raising it at trial, People v Carines, 460 Mich 750,
761-764, 774; 597 NW2d 130 (1999); People v Snider, 239 Mich App 393, 420; 608 NW2d 502
(2000), it is without merit. Generally, a photographic identification should not be used when the
defendant is either in custody, People v Anderson, 389 Mich 155, 186-187; 205 NW2d 461 (1973),
or when he is “readily available” for a corporeal lineup. People v Dumas, 102 Mich App 196, 200;
301 NW2d 849 (1980). “Readily available” has been strictly construed to mean subject to legal
compulsion to appear at a line-up. People v Harrison, 138 Mich App 74, 76; 359 NW2d 256
(1984). A defendant is subject to legal compulsion to appear when a warrant has been issued for his
arrest. Id., at 77. See People v Kurylczyk, 443 Mich 289, 298 n 8; 505 NW2d 528 (1993).
1
Although defendant was tried before a jury, the judgment of sentence erroneously indicates that he
was tried before the court. We therefore remand for correction of the judgment of sentence.
* Former Court of Appeals judge, sitting on the Court of Appeals by assignment.
-1
In this case, defendant was neither in custody nor had a warrant been issued for his arrest.
Therefore, the photographic lineup was proper. People v Strand, 213 Mich App 100, 104; 539
NW2d 739 (1995). Because the photographic lineup was proper, counsel was not ineffective for failing
to move for suppression of the witness’ in-court identification. People v McFadden, 159 Mich App
796, 798; 407 NW2d 78 (1987). In any event, there was an independent basis for the in-court
identification of defendant. See People v Gray, 457 Mich 107; 577 NW2d 92 (1998).
Affirmed and remanded for correction of the judgment of sentence.
jurisdiction.
We do not retain
/s/ Richard Allen Griffin
/s/ Donald E. Holbrook, Jr.
/s/ Joseph B. Sullivan
-2
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