Opinion
Docket No. 52937.
Decided October 26, 1981.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief Appellate Counsel, and Geoffrey H. Nickol, Assistant Prosecuting Attorney, for the people.
Lippitt, Harrison, Perlove, Friedman, Zack Whitefield (by Norman L. Lippitt and Steven B. Sinkoff), for defendant on appeal.
Defendant appeals as of right a May 8, 1980, jury verdict convicting him of armed robbery, MCL 750.529; MSA 28.797, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). On June 20, 1980, defendant was sentenced to a term of from 4 to 20 years imprisonment for the armed robbery conviction and was given the mandatory two-year term of imprisonment for the felony-firearm conviction.
Defendant's convictions arose out of a June 10, 1979, incident in which a party store in Madison Heights was robbed of $1,200. The evidence implicating defendant in this crime consisted, in part, of the testimony of the three store employees who were working at the time of the robbery and who identified defendant during trial and of evidence establishing that defendant had access to an automobile that fit the description of the getaway vehicle.
Defendant offered an alibi defense during trial. He also presented the testimony of several acquaintances to the effect that Eddie Salmu, an acquaintance of both defendant and the witnesses, stated on several occasions that he was the perpetrator of the armed robbery.
Defendant raises six issues in this appeal, none of which require reversal.
The first issue raised by defendant concerns whether the trial judge erred in permitting the prosecutor to introduce rebuttal testimony which impeached the credibility of an alibi witness where the prosecutor had not given notice under the provisions of MCL 768.20; MSA 28.1043 that he intended to call this rebuttal witness.
Prior to trial, defendant filed a notice of alibi as is required by MCL 768.20; MSA 28.1043. During trial, defendant's 10-year-old brother and his sister testified that he was at home with them on the evening of the crime. Specifically, the sister testified that she got out of work at 6 p.m. on the date in question and that she went straight home, arriving at approximately 6:20 p.m. Upon arriving home, she cooked supper for defendant and her 10-year-old brother and, after they had eaten, they remained at home.
Following the close of the defense, the prosecutor requested permission to present the rebuttal testimony of a detective who had interviewed defendant's sister prior to trial. This witness was permitted to testify that defendant's sister had told him that she and her parents were away from home on the evening of the crime.
Defendant argues that the trial judge erred in permitting the prosecutor to introduce this rebuttal testimony because the prosecutor had failed to file and serve upon defendant a notice of rebuttal containing the names of the witnesses whom the prosecutor proposed to call to controvert defendant's defense of alibi. MCL 768.20; MSA 28.1043.
We are convinced that the trial judge properly exercised his discretion in this matter. The testimony presented by the prosecutor on rebuttal was not used to rebut defendant's alibi but to impeach his sister's credibility. Therefore, it was proper under the holding of this Court in People v Gillman, 66 Mich. App. 419; 239 N.W.2d 396 (1976). The fact that the witness may have made some statements on rebuttal that were inconsistent with his testimony in the prosecutor's case in chief is not a sufficient reason to hold that Gillman does not apply in this case. Defense counsel was given, and took advantage of, an opportunity to cross-examine the rebuttal witness at length so as to clear up any confusion created by the alleged inconsistencies.
Defendant next claims that error requiring reversal occurred when a police officer's unresponsive answer to a question by the prosecutor alluded to the fact that the person for whom they were searching was a suspect who "was once arrested before".
After this unresponsive answer had been elicited, the prosecutor discontinued the questioning of the witness and a bench conference was held. The judge instructed the jury that the reference made by this witness to an arrest had nothing to do with the instant case and was not to be considered by them.
There is no question but that this testimony was improper if the "suspect" referred to was the defendant. People v McCarver (On Remand), 87 Mich. App. 12; 273 N.W.2d 570 (1978), People v McCartney, 46 Mich. App. 691; 208 N.W.2d 547 (1973). However, the unresponsive testimony in this case appears not to have come from a question calculated by the prosecutor to elicit inadmissible evidence. The trial judge instructed the jury that the witness's reference to a prior arrest had nothing to do with this case, and we note that the "suspect" referred to was not identified as the defendant. Finally, after this allegedly improper evidence came to light, the prosecutor made no attempt to capitalize on it and, in fact, immediately discontinued the questioning of this witness. Under these facts, we find that no error requiring reversal was committed.
Nor do we find that error requiring reversal occurred when the prosecutor misstated certain evidence during his closing argument to the jury. While it is true that defendant's former girlfriend did not tell a police detective that defendant committed the crime, she did say that the robber's description fit that of defendant and that he probably had access to her automobile, the getaway car.
Following the prosecutor's argument, the jury was reminded of the actual testimony by defense counsel's objection, and, in addition, the trial judge immediately gave the jury an instruction that they should be the factfinders as to what the detective actually said. Therefore, no miscarriage of justice occurred due to the prosecutor's remarks.
Defendant next argues that error occurred when the trial judge did not instruct the jury, sua sponte, that the information setting forth the crime was not evidence. It is our opinion, however, that no error has occurred. A trial judge is not required to instruct the jury on a point of law unless such an instruction has been requested by the defendant. People v Hanna, 85 Mich. App. 516; 271 N.W.2d 299 (1978), People v Frederick Lester, 78 Mich. App. 21; 259 N.W.2d 370 (1977).
Our review of the record indicates that the trial judge advised the prospective jury panel of the presumption of innocence prior to voir dire. Further, the trial judge and the prosecutor both emphasized that the information related only to an offense that was charged or was alleged to have occurred. Although the trial judge did not specifically instruct the jury as to the purpose of the information, defendant did not object to the judge's reading of the information, nor did defendant request an instruction regarding it. Because we fail to perceive that defendant was prejudiced by the trial judge's failure, sua sponte, to instruct the jury that the information was not evidence against the defendant, we conclude that no error requiring reversal has resulted.
Subsequent to his arrest, defendant was identified at a lineup by the three store employees who were present at the robbery. Defendant was represented by counsel at the lineup, and no objection was made that the lineup was suggestive or otherwise unfair. In fact, defendant's attorney agreed that it was a good lineup.
Defendant is of Arabic extraction. No other Arabic persons were placed in the lineup although the characteristics of the other participants, such as height, weight, hair color and length, eye color, and facial hair, were similar to defendant's.
Prior to trial, a suppression hearing was held at which defendant argued that the absence of any Arabic persons in the lineup caused it to be so impermissibly suggestive as to lead to an irreparable misidentification, violative of due process. The judge ruled that the lineup was fair and denied defendant's motion to suppress.
Identification procedures which are unnecessarily suggestive and conducive to irreparable mistaken identification deny a criminal defendant due process of law. Stovall v Denno, 388 U.S. 293; 87 S Ct 1967; 18 L Ed 2d 1199 (1967). In ruling on a motion to suppress evidence of an identification, a trial judge must look at the entire circumstances surrounding the identification procedure. People v Horton, 98 Mich. App. 62; 296 N.W.2d 184 (1980). Further, where a criminal defendant is represented by counsel at a lineup, the burden rests upon the defendant to factually support his claim that the lineup was impermissibly suggestive. People v Rivard, 59 Mich. App. 530; 230 N.W.2d 6 (1975).
In the instant case, the three identification witnesses had between three and five minutes to view the burglar during the commission of the crime. The perpetrator was face-to-face with one of the witnesses and stood within a few feet of the other two witnesses. Each of the witnesses gave substantially the same description of the criminal, and only three days lapsed between the date of the crime and the lineup. All three witnesses individually picked out defendant, and each demonstrated a high degree of certainty that defendant was the person who robbed the store.
We have viewed a picture of the lineup, and we agree with the trial judge that defendant's characteristics did not set him apart from the other participants so as to amount to undue suggestion. Therefore, under the totality of the circumstances of this case, we find the trial judge's ruling in this matter not to be clearly erroneous.
Defendant also complains that error occurred when the trial judge failed to give certain preliminary instructions to the jury. However, the record establishes that defendant neither requested preliminary instructions nor objected to the lack of them. Thus, this argument has not been preserved for appeal. People v Barker, 97 Mich. App. 253; 293 N.W.2d 787 (1980).
We have considered each of the issues raised by defendant in this appeal and have found that none of them require reversal. Therefore, defendant's May 8, 1980, jury convictions of armed robbery and possession of a firearm during the commission of a felony are affirmed.
Affirmed.