Right to a Lawyer During a Pre-Custody In Michigan

There generally is no right to counsel during a pre-custody, pre-questioning, mere suspicion phase of an investigation. Id. at 301, 318; People v. McKenzie, 205 Mich App 466, 472; 517 NW2d 791 (1994). It is true that the police testified that, at the time of the Underhill showups, defendant was their only suspect, and they were using the showups to help build their case involving the present victim. Defendant relies on McKenzie, supra at 472, in which this Court noted that, in Kurylczak, the Michigan Supreme Court did not explain the "unusual circumstances" entitling a defendant to counsel at a photographic showup. By way of dictum, this Court in McKenzie, supra at 472, opined that the "unusual circumstances" would have to be similar to those existing in People v. Cotton, 38 Mich App 763; 197 NW2d 90 (1972), or "where the witness has previously made a positive identification and the clear intent of the lineup is to build a case against the defendant." In Cotton, the defendant had been released from custody after two corporeal lineups were conducted with counsel present, and the subsequent photographic showup was conducted without the presence of counsel. the Court in Kurylczak, supra at 299-300, noted that, in Cotton, this Court held that the defendant had a right to counsel at the showup based upon the unusual circumstances of the case.