People v. Davis

• Decision Date: 28 May 1975
• Docket Number: Docket No. 19372,No. 1,1
• Citation: 232 N.W.2d 683,61 Mich.App. 220
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Clifford Bernard DAVIS, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 683

232 N.W.2d 683

61 Mich.App. 220

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Clifford Bernard DAVIS, Defendant-Appellant.

Docket No. 19372.

Court of Appeals of Michigan, Division No. 1.

May 28, 1975.

Released for Publication Sept. 9, 1975.

J. Russell Hughes, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, App. Div., Thomas M. Khalil, Asst. Pros. Atty., for plaintiff-appellee.

Before J. H. GILLIS, P.J., and QUINN and MAHER, JJ.

J. H. GILLIS, Presiding Judge.

On the morning of January 18, 1973, two men robbed the Dobbs Clothes establishment in the City of Detroit moments after the store opened at 9 a.m. Defendant was arrested more than three months later, on April 22, 1973, when he entered the store and greeted the owner who immediately recognized him as one of the men who robbed the store in January.

On October 24, 1973, defendant was found guilty by a jury of the crime of armed robbery (M.C.L.A. § 750.529; M.S.A. § 28.797) and sentenced to 15 to 25 years in prison.

On appeal defendant raises several issues for our consideration, alleging that the pretrial lineup identification procedure was unduly suggestive, that the verdict was contrary to the great weight of the evidence, that various procedural irregularities occurred at trial, and that the entire handling of the arrest, pretrial and trial effectively denied defendant a fair trial.

First, we should note that our examination of the record discloses that the pretrial lineup was not unduly suggestive.

Next, we consider defendant's request that the court suppress his prior convictions in the event that he should decide to take the witness stand. Defendant contends that the court erred in ruling on this motion. The transcript reveals that the court agreed with the argument of counsel as to misdemeanor convictions and stated that he would rule on the felony convictions at a later point. A lunch recess was then taken and immediately after lunch, counsel announced that, following a long discussion with his client, the client had elected not to testify. The issue of the admissibility of felony convictions thus became moot.

Defendant also contends that the trial court's instruction that the defense of alibi is 'easy to prove and hard to disprove' was erroneous. In People v. McCoy, 392 Mich. 231, 240, 220 N.W.2d 456, 460 (1974), the Supreme Court held that '(f)or cases tried after the publication of this opinion, it will be deemed reversible error (1) to denigrate the alibi defense 'as easily proven and hard to disprove' * * *'. McCoy was decided on August 2, 1974. Defendant's trial was in October of 1973. Thus, the trial court's instructions as of defendant's trial date were not erroneous.

The final issue which we will discuss alleges that the trial court advised the jury that identity was the sole issue of fact to be determined by them. Our examination of the record discloses that the court did not so instruct the jury.

The court stated that the prosecutor in his argument indicated that the main question in this case was the identification, but the court very carefully instructed the jury that each and every element must be established by the prosecution and that all of the elements constituting the charge must be proved and if not proved, then the jury must find the defendant not guilty.

The other allegations have been considered and we find no reversible error.

Affirmed.

MAHER, Judge (dissenting).

Counsel for defendant asked that the trial court, in the event defendant testifies, exclude reference to defendant's prior convictions for purposes of impeachment. The trial judge replied:

'You want to bring some law * * * that will sustain your position on this between now and 2 o'clock? I will be glad to look it over. * * * I am not going to cross that bridge until I see what the prosecutor is going to ask at the time and you can approach the bench.' (Emphasis supplied.)

After a recess was taken, the following discussion took place outside the presence of the jury:

Counsel for Defendant: 'Your Honor, I would like the record to reflect that quite a prolonged discussion with my client was had regarding the possibility of him testifying. I advised him that he has no obligation or duty whatsoever to testify and that his absence from the witness stand cannot be used in anyway as far as the jury's consideration of the case is concerned. I advised him that if he did take the stand, that based on the law and court rules, the prosecutor May be able to ask him about any previous convictions.

'After consultation, he advises me...