People v. Jones, Docket No. 11732

• Decision Date: 20 February 1973
• Docket Number: No. 1,Docket No. 11732,1
• Citation: 44 Mich.App. 633,205 N.W.2d 611
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Calvin JONES, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 611

205 N.W.2d 611

44 Mich.App. 633

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Calvin JONES, Defendant-Appellant.

Docket No. 11732.

Court of Appeals of Michigan, Division No. 1.

Feb. 20, 1973.

Rehearing Denied April 10, 1973.

Released for Publication April 9, 1973.

James R. Neuhard, State Appellate Defender, 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., Edward R. Wilson, Asst. Pros., Atty., for plaintiff-appellee.

Before LESINSKI, C.J., and FITZGERALD and J. H. GILLIS, JJ.

J. H. GILLIS, Judge.

Defendant was convicted by a jury of breaking and entering with intent to commit larceny. M.C.L.A. § 750.110; M.S.A. § 28.305. He was sentenced to serve from 5 to 15 years imprisonment and appeals as of right.

Defendant contends the trial court committed reversible error in failing to instruct the jury on lesser included offenses. The defendant, who presented an alibi defense, neither requested such instructions nor objected to the instructions given. The trial judge did not instruct on lesser included offenses, but did not affirmatively exclude them from the consideration of the jury. Under these circumstances, we do not reverse. M.C.L.A. § 768.29; M.S.A. § 28.1052, GCR 1963, 516.2. See People v. Wynn, 386 Mich. 627, 194 N.W.2d 354 (1972); People v. Lemmons, 384 Mich. 1, 178 N.W.2d 496 (1970). See also People v. Van Smith, Jr., 388 Mich. 457, 203 N.W.2d 94 (1972).

Defendant asserts error in the questioning by the trial judge of an alibi witness for defendant. The questioning was brief, limited in scope, and material to the issues. While some of the questions might convey the impression that the trial judge became impatient with the Witness, it cannot be said that he communicated to the jury any opinion as to defendant's guilt or innocence. See People v. Piscunere, 26 Mich.App. 52, 181 N.W.2d 782 (1970). There was no objection to the questioning. Furthermore, during the course of his instructions to the jury the trial judge stated:

'Now, we come to the credibility of the witnesses. That is for you to determine. You are the sole judges of the credibility. And if I have done anything to indicate to you how I want this case, or what I think this case is all about, and what the verdict should be, you should disregard that, because I should not have done that.'

Any potential harm in the questioning by the trial judge was cured by these instructions. We find no prejudice to the defendant.

Defendant asserts error in admission of identification testimony derived from what he terms an impermissibly suggestive lineup. Testimony revealed that one of the perpetrators wore a green T-shirt. The principal identification witness identified the defendant at trial, who was wearing a green T-shirt at the lineup.

Since no objection was raised to the lineup procedure at trial, the Court of Appeals will not consider defendant's claim absent a showing of clear injustice. People v. Martin, 31 Mich.App. 624, 626--627, 188 N.W.2d 41 (1971). Defendant's efforts to show clear injustice on appeal are limited to statements of the principal identification witness at the preliminary examination where the witness' memory as to colors of shirts worn by other lineup participants was demonstrably vague. Yet, at trial, the same witness testified:

'Q. Now, when you went in to view that lineup, how many boys were in that lineup?

'A. Maybe it was nine or ten. I don't know how many it was. Something like that.

'Q. Do you remember how any of them were dressed?

'A. In the lineup?

'Q. Yes.

'A. No, I don't really.

'Q. Do you remember how Calvin Jones was dressed?

'A. Yes, I remember.

'Q. How was he dressed?

'A. He had on a green T-shirt, with dark trousers.

'Q. Now, when you looked at all those nine people, do you recall any of the other ones having a green T-shirt on?

'A. I think it was another one that had on one, but it wasn't as light as his.

'Q. What drew your attention to him in the lineup? Was it his haircut, was it is T-shirt, or was it his face?

'A. I actually remember him by his face.

'Q. By his face?

'A. I did. When I saw him, that was the same face I had saw come out of this lady's house.'

Even assuming defendant was the only lineup participant wearing a green T-shirt, we are not convinced an impermissible suggestion arose. Several courts have concluded that wearing of the same clothing at arrest and subsequent lineup will not vitiate the lineup, even where the clothing serves to draw attention away from other lineup participants. Hernandez v. State, 7 Md.App. 355, 255 A.2d 449 (1969); Presley v. State, 224 Md. 550, 168 A.2d 510 (1961), cert. den., 368 U.S. 957, 82 S.Ct. 399, 7 L.Ed.2d 389 (1961). See also 39 A.L.R.3d 487, § 9, p. 500.

In any event, the identification witness's trial testimony renders the objection insignificant. She stated her identification was hinged on a more crucial factor, defendant's face. Thus, the case is easily distinguished from People v. Hutton, 21 Mich.App. 312, 331, 175 N.W.2d 860 (1970), where the defendant's distinctive clothing was the pivotal identifying factor.

Fourth, defendant contends it was reversible error to admit into evidence his record of misdemeanor convictions for impeachment purposes. Again, no objection was raised at trial.

As stated in People v. Pollard, 39 Mich.App. 291, 292, 197 N.W.2d 546 (1972):

'As a general proposition, the prior conviction record of a witness--including a defendant in a criminal case who takes the stand to testify in his own behalf--is admissible to impeach his credibility. * * * In contrast with People v. Farrar, 36 Mich.App. 294, 306, 193 N.W.2d 363 (1971), in this case the trial judge was not asked to exclude, in the exercise of discretion, reference to the defendant's conviction record.'

Where the trial judge's discretion has not been invoked, there can be no abuse of that discretion, and consequently no error.

Defendant urges a remand for resentencing because the judge considered evidence of defendant's 'immorality' at the time of sentencing. The judge had indicated his intent to sentence defendant to a lengthy term of imprisonment on the basis of the presentence recommendation. This occurred prior to a colloquy in which defendant...