People v. Dozier, Docket No. 6597

• Decision Date: 24 March 1970
• Docket Number: Docket No. 6597,No. 1,1
• Citation: 22 Mich.App. 528,177 N.W.2d 694
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jimmie DOZIER, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 694

177 N.W.2d 694

22 Mich.App. 528

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jimmie DOZIER, Defendant-Appellant.

Docket No. 6597.

Court of Appeals of Michigan, Division No. 1.

March 24, 1970.

Released for Publication June 26, 1970.

Leave to Appeal Denied Sept. 1, 1970.

Carl Levin, Arthur J. Tarnow, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Owen J. Galligan, Asst. Pros. Atty., for plaintiff-appellee.

Before LESINSKI, C.J., and QUINN and V. J. BRENNAN, JJ.

V. J. BRENNAN, Judge.

Around 9:45 a.m., February 4, 1968, a Detroit woman, the complainant here, was raped and robbed by a young man meeting defendant Jimmie Dozier's description. Charged with the two crimes,* defendant claimed mistaken identity and alibi as defenses. A jury returned a verdict of guilty of both charges on August 26, 1968, and the court sentenced defendant to two, concurrent prison terms of 10 to 15 years.

Defendant's first two allegations of error involve a telephone conversation allegedly held between the defendant's mother and a policewoman assigned to the case. Defendant testified on cross-examination that he arrived home from an all-night restaurant around 6 o'clock in the morning of February 4 and stayed in bed until 6 o'clock that evening. Asked by the prosecutor whether she had told a policewoman over the telephone that defendant had arrived home between 1 and 2 a.m., defendant's mother, a defense witness, answered 'No, I didn't, I don't think I did,' and finally, 'I don't remember.' The prosecutor then called the policewoman to the stand, who testified from her notes that defendant's mother had indeed told her that defendant had arrived home between 1 and 2 a.m. The policewoman added that defendant's mother also told her that on February 4 her son stayed in bed until 6 p.m.

Defendant contends that the prosecutor failed to lay a foundation for the impeachment of his mother's credibility, and therefore the policewoman's testimony was inadmissible. Queen Caroline's Case (1820), 2 Brod. & Bing. 284, 313 (129 Eng.Rep. 976); 3 Wharton, Criminal Evidence (12th Ed.) § 918. We disagree. The prosecutor questioned defendant's mother as follows:

'Q (By Mr. Abate, continuing) Did you receive a telephone call anytime within a few days after February 4th, 1968, from a person purporting to be a policewoman?

'A I can't recall.

'Q Can't recall? Did you ever speak with anybody from the police department?

'A One Saturday I did.

'Q Mrs. Dozier, did you make a statement to anyone that you remember, that your son, Jimmie, came home at one or two a.m. Sunday morning, February 4th, 1968?

'A No, I didn't.

'Q You did not make that statement to anyone? Are you sure? Are you sure, Mrs. Dozier?

'A I don't think I did. I can't remember.'

McCormick summarizes the elements of laying a foundation:

'To satisfy the requirement the cross-examiner will ask the witness whether he made the alleged statement, giving its substance, and naming the time, the place and the person to whom made. The purpose of this particularity is, of course, to refresh the memory of the witness as to the supposed statement by reminding him of the accompanying circumstances.

'If the witness denies the making of the statement, or fails to admit it, but says 'I don't know' or 'I don't remember' then the requirement of 'laying the foundation' is satisfied and the cross-examiner, at his next stage of giving evidence, may prove the making of the alleged statement.' McCormick, Handbook of the Law of Evidence (1954), § 37, p. 68.

The prosecutor's preliminary questions were more than adequate to refresh the mother's memory.

The trial court did not instruct the jury that the policewoman's testimony could be considered only for purposes of impeachment, and not as substantive evidence of the defendant's guilt. Defendant contends that the failure to give an instruction to this effect is reversible error. The record shows that trial counsel neither requested the instruction nor objected to the court's failure to give it. Consequently, defendant cannot complain of error. GCR 1963, 516.2; People v. Mallory (1966), 2 Mich.App. 359, 139 N.W.2d 904; People v. Allar (1969), 19 Mich.App. 675, 173 N.W.2d 261. We note that it has been held to be reversible error not to give an instruction even though an instruction was not requested and objection was not made. People v. Durkee (1963), 369 Mich. 618, 120 N.W.2d 729; People v. Eagger (1966), 4 Mich.App. 449, 145 N.W.2d 221; People v. Rodgers (1969), 18 Mich.App. 37, 170 N.W.2d 493; People v. Anderson (1966), 2 Mich.App. 718, 141 N.W.2d 353. However, where it has, the prior, inconsistent statements have been the only direct evidence of guilt, the other evidence being either nonexistent, Anderson, or only circumstantial, Durkee, Eagger, Rodgers. In the instant case, the complainant's testimony provided strong and direct evidence of guilt; the prior, inconsistent statements did not. We find no eversible error.

Defendant's remaining two assignments of error involve a lineup at which the complainant identified him as her assailant.

Defendant contends that the lineup 'was so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law.' Stovall v. Denno (1967), ...