People v. Hunt, Docket No. 55248

• Decision Date: 06 January 1983
• Docket Number: Docket No. 55248
• Citation: 120 Mich.App. 736,327 N.W.2d 547
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Milton HUNT, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 547

327 N.W.2d 547

120 Mich.App. 736

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Milton HUNT, Defendant-Appellant.

Docket No. 55248.

Court of Appeals of Michigan.

Submitted April 6, 1982.

Decided Nov. 2, 1982.

Released for Publication Jan. 6, 1983.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Chief Appellate Asst. Pros. Atty., and Andrea L. Solak, Asst. Pros. Atty., for the people.

Sidney Kraizman, Detroit, for defendant-appellant.

Before ALLEN, P.J., and RILEY and FERGUSON, ^* JJ.

FERGUSON, Judge.

Defendant was convicted by a jury of first-degree felony-murder, M.C.L. Sec. 750.316; M.S.A. Sec. 28.548, and possession of a firearm during the commission of a felony, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). He was sentenced to mandatory prison terms of life for the murder conviction and two years for the felony-firearm conviction. He appeals as of right. We affirm.

Two witnesses testified that as they entered a bar they saw defendant and another individual, identified as defendant's brother, standing outside. Shortly thereafter, two men entered the bar and announced a holdup. One of the men, wearing a ski mask which covered his face, carried a rifle. The other man, wearing nothing over his face, carried a handgun. One of the witnesses testified that defendant was the man wearing the ski mask. The second witness testified that he saw defendant and the other individual in the vestibule of the bar immediately before the holdup. The bar patrons were told to lie on the floor and the perpetrators began collecting their wallets. During the course of the robbery, one Raymond Pertile struggled with the masked man and was shot several times, apparently by the other perpetrator. He died of multiple gunshot wounds.

The primary issue on appeal concerns the identification of defendant. Both witnesses who identified defendant at trial also testified that they identified him as one of the two perpetrators of the crime at a hearing conducted approximately five months prior to trial. Although the nature of that hearing was not disclosed to the jury, the reference was to a probation revocation hearing. Defendant contends that it was error to allow the witnesses to testify as to the earlier identification because defendant was not represented by counsel at that hearing.

Defendant failed to object to any of the testimony concerning the pretrial identification on the basis that it was obtained in the absence of counsel. Appellate review is, therefore, precluded absent a finding of manifest injustice. People v. Moss, 397 Mich. 69, 243 N.W.2d 254 (1976); People v. King, 107 Mich.App. 208, 210, 309 N.W.2d 207 (1981). We find no manifest injustice with regard to the testimony of the first witness because the testimony was first elicited by defendant on cross-examination. Prior to this time, the prosecutor had informed both the court and defense counsel that he would not question either witness about the hearing during direct examination. It is apparent upon a review of the record that defense counsel elicited the testimony in an attempt to suggest that the witness's in-court identification should be discredited because it was based upon the prior identification. We believe this to be a matter of trial strategy with which we will not interfere. People v. King, supra. It would be unfair for defendant to be able to suggest that the witness's in-court identification was tainted as being based only on an out-of-court observation and preclude the prosecutor from questioning the witness further in an attempt to rehabilitate her on redirect examination. We find no manifest injustice in the admission of this testimony.

It was the prosecutor who first elicited the testimony concerning the pretrial identification from the second witness. Although it may have been improper for the prosecutor to elicit this testimony on direct examination, we find no manifest injustice. It is apparent through defense counsel's questioning of the first witness that it was his strategy to use the pretrial identification to discredit the witnesses' in-court identifications. He opened the door to this line of questioning.

Defendant next asserts that the trial court erred in allowing two police officers to testify, over a hearsay objection, that the man several witnesses identified in a lineup as being one of the perpetrators was named Joseph Hunt, defendant's brother. Each of those witnesses testified that he or she identified Joseph Hunt as one of the perpetrators. Defendant's only objection is that the officers could not testify as to the name of the person identified because that would be hearsay. Although the courts of this state have not addressed this particular issue, it has been held that evidence of a name by which a person is known is not within the rule, excluding hearsay evidence. See, State v. Shields, 619 S.W.2d 937 (Mo.App.1981), and authorities cited therein. The officers' testimony was not inadmissible on hearsay grounds.

Defendant next argues that the trial court's instruction on felony-firearm requires reversal. We disagree. Since no objection was made to the instruction, reversal is not warranted unless the court failed to instruct on an essential element of the offense or a basic or controlling issue, or the instruction is so misleading and confusing as to result in a miscarriage of justice. In the present case, the court read the felony-firearm statute, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2), and the information to the jury. We find this was sufficient. The statute clearly states the two elements of the offense, namely, that defendant carried or possessed a firearm, and that the firearm was carried or possessed during the commission of any felony or attempted felony. Wayne County Prosecutor v. Recorder's Court Judge, 406 Mich. 374, 397-398, 280 N.W.2d 793 (1979). We reject defendant's argument that the court's failure to state that defendant must knowingly carry or possess the firearm was fatal. We also reject defendant's claim that the court's failure to define "firearm" requires reversal. Although the trial court failed to give CJI 11:9:01(6) and (9), which define firearm, those subsections are optional and are to be given only where a clarifying instruction is warranted. Inasmuch as defendant never argued that...