People v. Coles

• Decision Date: 24 October 1977
• Docket Number: Docket No. 29343
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Bruce L. COLES, Defendant-Appellant. 79 Mich.App. 255, 261 N.W.2d 280
• Court: Court of Appeal of Michigan — District of US

Page 280

261 N.W.2d 280

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Bruce L. COLES, Defendant-Appellant.

Docket No. 29343.

79 Mich.App. 255, 261 N.W.2d 280

Court of Appeals of Michigan.

Oct. 24, 1977.

Released for Publication Jan. 13, 1978.

[79 MICHAPP 258] Larry G. Sharp, Flint, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert F. Leonard, Pros. Atty., Donald A. Kuebler, Chief Asst. Pros. Atty., for plaintiff-appellee.

Before DANHOF, C. J., and T. M. BURNS and KEYES, ^* JJ.

DANHOF, Chief Judge.

Defendant was convicted by a jury of armed robbery, M.C.L.A. § 750.529; M.S.A. § 28.797, and sentenced to 15 to 25 years imprisonment. He now appeals by right. The facts are stated within as they relate to the questions raised on appeal.

I

Defendant claims that the trial judge erred reversibly in permitting a police officer to relate in his testimony the description of defendant that he obtained from the victim, relying on People v. Hallaway, 389 Mich. 265, 275-279, 205 N.W.2d 451 (1973). The victim, Alonzo Carelock, outlined in his own testimony his description to the police of defendant's appearance at the time of the robbery, and the police officer's testimony matched Carelock's recollection of the description he gave. Over defense objection, the trial judge admitted the police officer's testimony "to indicate there is no conflict in what Carelock said on an earlier occasion as compared to what was testified to here in court," and cautioned the jury that the officer's [79 MICHAPP 259] testimony was being admitted "only for that purpose, so that the jury can evaluate the credibility of an earlier witness, without at the same time indicating that by recitation by this witness of what a victim told him or is said to have told him, that this indicates its honesty or truthfulness".

Essential to a complete understanding of our view of this claim of error are certain aspects of the cross-examination of Carelock by defense counsel. After first eliciting from Carelock admissions that he had been discharged from his employment as manager of the store sometime after the robbery because of his inability to control cash and inventory shortages, and that he had seen defendant in the store as a customer at least once before the robbery, defense counsel questioned Carelock about an alleged courthouse confrontation between Carelock and two friends of defendant:

"Q. Do you remember somebody directing a question to you as to why you picked Mr. Coles, that you felt that he did this? Do you remember anybody asking you that question?

"A. Did anybody ask me a question?

"Q. Yes.

"A. I remember some fellows coming up to me and talking to me and I said, 'Well, if you know anything, just tell the detective.' That's all I said. I didn't make no statements.

"Q. Did you ever say that the reason you picked Mr. Coles was because the dairy expected it, or because you'd lose your job if you didn't pick somebody?

"A. No.

"Q. You never said that?

"A. No.

"Q. You're sure?

"A. Yes." (Emphasis added.)

The character of this inquiry into the credibility of [79 MICHAPP 260] Carelock's identification of defendant went beyond a mere probing for prior inconsistent statements, such as occurred in Hallaway, supra, at 276, 205 N.W.2d 451. Defense counsel attempted to establish, first through cross-examination of Carelock, and later by the direct testimony of a defense witness, one Al Green, that Carelock had fabricated his identification of defendant after the robbery in order to save his job. The implicit claim of recent fabrication raised by the defense thus renders the rule requiring reversal in Hallaway ¹ inapplicable to this case:

"Generally, consistent statements of a witness are not admissible as substantive evidence. People v. Hallaway, 389 Mich. 265, 276, 205 N.W.2d 451 (1973); Dundas v. Lansing, 75 Mich. 499, 502, 42 N.W. 1011, 13 Am.St.Rep. 457, 5 L.R.A. 143 (1889); Brown v. People, 17 Mich. 429, 435, 97 Am.Dec. 195 (1868). It has been said, however, that they are often 'allowed a limited admissibility for the purpose of supporting the credibility of a witness, particularly to show that a witness whose testimony has allegedly been influenced told the same story before the influence was brought to bear.' McCormick, Evidence (2d ed.), § 251, p. 604. The authors of this recent revision of McCormick assert that the trend of decision supports the admission of consistent statements; they reason that '(t)he witness can be cross-examined fully. No abuse of prepared statements is evident. The attack upon the witness has opened the door.' McCormick, Evidence, op. cit.

"In People v. Hallaway, supra (389 Mich.), p. 277 (205 N.W.2d 451) it was recently noted: 'Justice COOLEY, in Stewart v. People, 23 Mich. 63 (9 Am.Rep. 78) (1871), held that a prior consistent statement of a witness may be admitted where a prior inconsistent statement has been put in evidence, and the prior consistent statement is of such character as to [79 MICHAPP 261] be probative upon the issue of whether or not the prior inconsistent statement was in fact made.'

"The conclusion that Hernandez's credibility and testimony had been challenged by a prior inconsistent statement and that the consistent statement was admissible as tending to rehabilitate his credibility is supported by the record, reason and authority. We are not inclined to reverse a ruling admitting a consistent statement. Stewart v. People, supra, p. 76." Brown v. Pointer, 390 Mich. 346, 351-352, 212 N.W.2d 201, 203 (1973). (Emphasis added.) (Footnote omitted.)

We conclude that under the circumstances of this case it was not an abuse of discretion for the trial judge to admit evidence of a prior consistent statement by Carelock containing a description of defendant matching that contained in his testimony and offered solely for the purpose of rebutting an implicit defense charge of recent fabrication bearing upon Carelock's identification of defendant. ² Carelock's prior consistent statement tended to show that his description of defendant remained unchanged after he was allegedly subjected to pressure by his employer to identify someone, and thus tended to rehabilitate his credibility after the defense charge of recent fabrication. Under such circumstances, admission of the prior consistent statement did not constitute an abuse of discretion. See Woodrow v. Johns, 61 Mich.App. 255, 262-264, 232 N.W.2d 688 (1975). ³

[79 MICHAPP 262]

II

Defendant next contends that the trial court erred reversibly in failing, sua sponte, to suppress Carelock's in-court identification of defendant because Carelock had previously chosen defendant's photograph from 11 high school yearbook photographs shown to him at a precustodial photographic show-up at which defense counsel was not present, and because the lineup at which Carelock identified defendant was impermissibly suggestive. We find no merit in these claims.

First, because defendant failed to move for suppression of Carelock's in-court identification and also failed to object to it the question of whether Carelock's identification testimony was erroneously admitted has not been properly preserved for appellate review. People v. Moss, 397 Mich. 69, 243 N.W.2d 254 (1976).

Secondly, we find no factual support for either of defendant's claims. Defendant was not in custody when the photographic show-up occurred. "It is the fact of custody that requires implementation of the Franklin Anderson rule * * *." People v. (James) Anderson, 391 Mich. 419, 422, 216 N.W.2d 780, 781 (1974). Nor did the officer who conducted the show-up have probable cause to arrest defendant when he showed the photographs to Carelock; instead, he had investigated two worthless leads and was pursuing a third when he showed the yearbook to Carelock. Under these circumstances, it is clear that defendant's contention that the investigation had "focused" on him, thus entitling him to have counsel present, is entirely without merit. People v. Lee, 391 Mich. 618, 625, 218 N.W.2d [79 MICHAPP 263] 655 (1974), People v. Wright, 71 Mich.App. 40, 48, 246 N.W.2d 422 (1976). In addition, there is nothing in the record to suggest that the yearbook show-up was unfairly conducted, where the yearbook pages in question depicted defendant and 10 other black males of like age. The character of this procedure was sufficiently neutral. People v. Belenor, 71 Mich.App. 10, 13, 246 N.W.2d 355 (1976).

Similarly, we note that the lineup, at which counsel was present, was conducted three weeks after the crime occurred, time enough to grow or remove facial hair. We find nothing impermissibly suggestive about this lineup, and note, in addition, that the record contains facts more than sufficient to warrant a conclusion that Carelock's identification of defendant had an independent basis. ⁴

These claims of error are without merit.

III

A codefendant who had participated in selecting the jury pled guilty to a lesser charge before any testimony was presented. The codefendant was indorsed as a prosecution witness and testified against defendant. Defendant now claims that the trial judge erred reversibly in failing, sua sponte, to discharge the jury. Insofar as we can determine, the question of whether a jury selected with the participation of a codefendant should be discharged sua sponte when that codefendant pleads guilty and appears as a witness for the prosecution is one of first impression in this state.

Two factors weigh heavily in our decision. First, [79 MICHAPP 264] defendant failed to object to the jury's composition after his codefendant pled guilty. Failure to raise an issue at the trial court level generally precludes appellate review in the absence of manifest injustice. People v. Carroll, 396 Mich. 408, 415-416, 240 N.W.2d 722 (1976). Secondly, defendant has shown no prejudice that inured to him as a result of his codefendant's participation in the jury selection, nor...