People v. Hallaway, Docket No. 6809
| Decision Date | 30 July 1970 |
| Docket Number | Docket No. 6809,No. 1,1 |
| Citation | 181 N.W.2d 546,25 Mich.App. 604 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John A. HALLAWAY, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
Nicholas Smith, Smith, Bokos & Jones, 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., Angelo A. Pentolino, Asst. Pros. Atty., for plaintiff-appellee.
Before R. B. BURNS, P.J., and HOLBROOK and V. J. BRENNAN, JJ.
Defendant John Hallaway was tried by a jury on March 26, 1968, and convicted of assault with intent to rob and steal being armed. M.C.L.A. § 750.89 (Stat.Ann.1962 Rev. § 28.284).
On May 24, 1967, three men, two of whom were wearing silk stocking masks, gained entry into Delphine Baraneck's home and announced a holdup. The robbers took flight after Miss Baraneck screamed; the only property taken was a small dark duffle bag containing papers, tools, clothing and a bankbook.
Several young persons testified that they heard Miss Baraneck's screams and then saw defendant running down the street in the company of two other men. Defendant was identified particularly because of his ears, which had been previously deformed in a fire. Several of the young persons observed the getaway car and noted its license number. The automobile was later found burned with a charred bag inside together with a remnant of an insurance policy bearing one of the victim's names. The automobile was registered to defendant.
Defendant contends on appeal that a showup conducted on June 11, 1967, was, "* * * unnecessarily suggestive and conducive to irreparable mistaken identification." People v. Floyd (1968), 15 Mich.App. 284, 166 N.W.2d 506, citing Stovall v. Denno (1967), 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199. Defendant claims that at the showup he was viewed alone (except for a plainclothes officer seated nearby), was without counsel, and was compelled to wear clothes similar to the apparel worn by one of the robbers. 1 We find that the record below simply does not justify defendant's contentions as to the manner in which the showup was conducted.
Prior to and, for that matter, after Wade, single confrontations were condemned but not unconstitutional Per se. See People v. Floyd, Supra, 15 Mich.App. at 287, 166 N.W.2d 506. All the circumstances were to be examined and the trial judge had discretionary authority to allow or not the facts of the showup and to be submitted to the jury, under proper instructions. There were no objections here to the court's charge; in fact, trial counsel commented that it, 'was a very fair charge.'
Examining then the entire circumstances surrounding the showup as related by the record, we do not feel the trial court abused its discretion in allowing the testimony concerning the showup to get before the jury.
Defendant also argues that the trial judge erred by permitting hearsay testimony by the investigating officers as to the descriptions given them of the robbers by eyewitnesses. In Michigan, admission of substantial hearsay evidence may be prejudicial error, notwithstanding the fact that the declarant is available for cross-examination, People v. Kaplan (1931), 256 Mich. 36, 239 N.W. 349. However, where the declarant testifies to and substantiates incompetent evidence, the defect becomes nonprejudicial. People v. Hawks (1919), 206 Mich. 233, 172 N.W. 405. In the instant case, the police gave hearsay testimony as to the robbers' descriptions and a description of the getaway automobile. In light of the fact that these eyewitnesses testified to substantially the same facts, whatever error there might be, if any, must be regarded as harmless. In People v. Gregory (1902), 130 Mich. 522, 90 N.W. 414, a police officer testified as to hearsay statements made to him by defendant...
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