People v. Mischley, Docket No. 92712

• Decision Date: 29 March 1988
• Docket Number: Docket No. 92712
• Citation: 164 Mich.App. 478,417 N.W.2d 537
• Parties: The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Brian Thomas MISCHLEY, Defendant-Appellant. 164 Mich.App. 478, 417 N.W.2d 537
• Court: Court of Appeal of Michigan — District of US

Page 537

417 N.W.2d 537

The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Brian Thomas MISCHLEY, Defendant-Appellant.

Docket No. 92712.

164 Mich.App. 478, 417 N.W.2d 537

Court of Appeals of Michigan.

Submitted May 5, 1987.

Decided Nov. 16, 1987.

Released for Publication Jan. 21, 1988.

Leave to Appeal Denied March 29, 1988.

[164 MICHAPP 479] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Joseph T. Barberi, Pros. Atty., and J. Ronald Kaplansky, Asst. Atty. Gen., for the People.

State Appellate Defender by Richard B. Ginsberg, for defendant-appellant on appeal.

Before CYNAR, P.J., and SAWYER and THORBURN, ^* JJ.

PER CURIAM.

Defendant was convicted by a jury of interfering with a police officer. M.C.L. 750.479; M.S.A. Sec. 28.747. On March 7 1986, a sentence of eighteen months probation, a $75 fine and costs of $450 were imposed and defendant appeals as of right.

A summary pertaining to the two issues raised is briefly stated. Following a college football game, a street party was being held on September 23, 1984, in Mount Pleasant. More than five hundred people were estimated to be present. When police arrived to disperse the crowd, some people threw objects at the police. Defendant was arrested and charged with the crime of resisting and obstructing an officer in the discharge of his duties.

At the preliminary examination on October 9, 1984, Officer LaLone identified defendant as the person he observed throwing a bottle. During cross-examination at the preliminary examination, it was brought out that Officer LaLone reviewed a photograph of the defendant immediately before [164 MICHAPP 480] coming into the courtroom. Further, LaLone was advised in advance that he would be asked to identify defendant from the gallery.

Pretrial conferences were held on October 19, 1984, June 6, 1985, and October 1, 1985. No pretrial motions were filed raising identification as an issue or seeking to suppress evidence.

The trial took place on January 21, 22, and 23, 1986. Six witnesses were called by the prosecutor before Officer LaLone testified. The testimony indicated that the police officers had specific orders to look for, identify and apprehend people who were throwing objects. According to a plan, an officer who saw a person throw an object would run in the direction of the person who threw the object and the other officers would follow. Officer LaLone was the seventh and last witness called for the prosecution. He testified to seeing a person that night who later became known to him as the defendant. He first saw defendant when an object was thrown. He ran toward defendant, defendant ran as he approached him and a chase followed. LaLone fell momentarily, lost contact, got up, noticed Mischley was still running and apprehended him. Several other officers were present or appeared a moment later at the point of apprehension.

During cross-examination of Officer LaLone, in response to a question asked, the witness stated that he looked at a picture of the defendant before the preliminary examination. Defense counsel objected to LaLone's identification of defendant as being tainted and, therefore, subject to suppression. The trial court noted the defense had such knowledge since October 9, 1984. The court found that each pretrial order stated that matters not raised were waived. In denying the motion to suppress, the court ruled there was no point in [164 MICHAPP 481] holding an evidentiary hearing to see if the officer had an independent basis for his identification of defendant because that should have been done before his testimony was given and not, as here, after that testimony was before the jury.

On appeal, defendant claims the trial court erred in denying the defense motion to suppress Officer LaLone's identification testimony. We do not agree.

The identification issue was not raised during the preliminary examination held on October 9, 1984. Nor at the pretrial conference. Nor prior to commencement of trial on January 21, 1986. The issue was raised approaching the completion of the prosecutor's proofs during cross-examination of Officer LaLone.

The issue central to the proof of guilt was whether the defendant was the person the officer saw throw a beer bottle. Defendant denied the commission of the act in question. According to the record, the police officers had specific orders to apprehend people throwing objects. Officer LaLone saw an object being thrown by a person, ran toward that person and other officers followed. LaLone lost sight of the person who threw the object momentarily during the chase, but he eventually apprehended and arrested him. Other officers arrived a brief moment after apprehension.

The trial court found that in each of the pretrial conferences the parties were required to raise by motion matters such as the question of identification or to consider the issue waived. At trial the parties agreed to conduct a hearing pursuant to People v. Kachar, 400 Mich. 78, 252 N.W.2d 807 (1977), during jury deliberations. The court agreed to a hearing to determine whether the witness had an independent basis for identification.

The trial court subsequently determined that [164 MICHAPP 482] such a hearing was precluded by People v. Anderson, 389 Mich. 155, 205 N.W.2d 461 (1973), because it should have been conducted prior to the introduction of the allegedly tainted testimony. The trial court properly exercised its discretion governing the conduct of the trial. People v. Holmes, 132 Mich.App. 730, 741, 349 N.W.2d 230 (1984). We note that in Anderson the issue was raised by "[t]imely and continuous objections by defendant's counsel to the victim's in-court identification ... at the preliminary examination, pretrial motions and by oral trial objections." Anderson, 389 Mich. p. 165, 205 N.W.2d 461. The trial court found these requirements were lacking in this case. We find no abuse of discretion.

The second issue involves alleged prosecutorial misconduct. Prior to closing arguments, defense counsel made a motion in limine to preclude the prosecutor from making reference to the Bible in his closing argument, noting that there was a pastor sitting on the jury. The reference he expected the prosecutor to make was that the Bible says if you run, you are guilty. The motion was denied.

Several times during his closing argument the prosecutor quoted...