Opinion
Docket No. 8208.
Decided February 23, 1971. Leave to appeal denied as moot July 19, 1971, 385 Mich. 771.
Appeal from Recorder's Court of Detroit, Joseph E. Maher, J. Submitted Division 1 December 16, 1970, at Detroit. (Docket No. 8208.) Decided February 23, 1971. Leave to appeal denied as moot July 19, 1971, 385 Mich. 771.
Albert Hearndon was convicted of rape. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Leonard Meyers, Assistant Prosecuting Attorney, for the people.
Eddie D. Smith, for defendant on appeal.
Defendant was convicted by a jury of rape, MCLA § 750.520 (Stat Ann 1954 Rev § 28.788), and sentenced to 15 to 20 years in prison.
The complainant, Mrs. Annie Sanders, alleged that on September 20, 1967, between 7 and 7:30 a.m., she was awakened by a man in her bedroom who was choking her and threatening her to remain silent. She was forced to have sexual intercourse with her assailant. She called the police as soon as her assailant was gone and was taken to a hospital for examination.
On or about November 5, 1967, Officer Richard Waldis of the Detroit Police Department talked to complainant and showed her some mug shots at her home, whereupon she made a preliminary identification of her assailant. Thereafter, on November 14, 1967, a lineup was conducted at police headquarters, at which time complainant identified defendant as her assailant.
On appeal defendant contends that the identification process was so prejudicial as to taint the subsequent in-court identification and that there was insufficient evidence to support a finding of guilt beyond a reasonable doubt.
At the preliminary examination complainant identified defendant but showed considerable hesitation about the accuracy of the identification. She was certain that defendant was the man she had identified from the police photographs but much less certain that he was the person who had raped her. At trial, when confronted with the testimony from the preliminary hearing, complainant stated that while she was uncertain at that time, she was now positive of her identification.
A review of the record discloses no identification procedures which taint the in-court identification. There is sufficient evidence, if believed by the jury, to justify a finding of guilt beyond a reasonable doubt. People v. Fred W. Thomas (1967), 7 Mich. App. 519; People v. Weems (1969), 19 Mich. App. 553.
In further support of his arguments concerning identification, defendant includes two affidavits detailing an alleged conversation between complainant and another woman in the corridor outside the courtroom. Both women had been victims of rapes and both agreed that they did not know who had raped them. Complainant further stated that she was sick of the whole mess and that if something wasn't done that day it would be the last time that she came to court.
These allegations made by defendant go to the question of the weight of the evidence. The issue is not properly preserved for review in this Court:
"An objection going to the weight of the evidence can be raised only by a motion for a new trial. On appeal, we review a denial for abuse of discretion. Here, no motion for a new trial was filed. The trial judge's discretion was, therefore, not invoked." People v. Paintman (1970), 28 Mich. App. 590.
Affirmed.