People v. King
| Decision Date | 16 June 1981 |
| Docket Number | 49088,Docket Nos. 49087 |
| Citation | 107 Mich.App. 208,309 N.W.2d 207 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael KING, Defendant-Appellant. 107 Mich.App. 208, 309 N.W.2d 207 |
| Court | Court of Appeal of Michigan — District of US |
[107 MICHAPP 209] Michael F. Bakaian, Detroit, for plaintiff-appellee.
Chari K. Grove, Detroit, for defendant-appellant.
Before BASHARA, P. J., and KAUFMAN and BANKS *, JJ.
Defendant appeals his convictions from two separate jury trials. In the first, docket No. 49087, defendant was convicted of armed robbery, M.C.L. § 750.529; M.S.A. § 28.797, and possession of a firearm during the commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2). In the second case, docket No. 49088, defendant was once again convicted of armed robbery, M.C.L. § 750.529; [107 MICHAPP 210] M.S.A. § 28.797, and possession of a firearm during the commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2). In each case, defendant was sentenced to from 3 to 25 years on the robbery conviction and to two years on the felony-firearm conviction, the sentences to run concurrently. In case No. 49087, defendant was tried for an armed robbery committed on July 12, 1979. In case No. 49088, defendant was charged, with codefendant Dion Smith, with committing an armed robbery on July 15, 1979.
Defendant first contends that his convictions in case No. 49088 must be reversed due to an unduly suggestive lineup identification. We disagree.
Appellate courts in this jurisdiction have previously held that the failure to object to testimony concerning an allegedly suggestive pretrial identification precludes consideration of this issue on appeal. People v. Moss, 397 Mich. 69, 243 N.W.2d 254 (1976); People v. Coles, 79 Mich.App. 255, 261 N.W.2d 280 (1977). A review of the record indicates that defendant's counsel failed to move in the trial court to exclude evidence of the allegedly improper pretrial identification. Rather, defense counsel tactically used the complainant's arguably tenuous lineup identification in an attempt to discredit his more positive in-court identification.
This Court is loathe to substitute its judgment for that of trial counsel in matters of trial strategy. People v. Penn, 70 Mich.App. 638, 648, 247 N.W.2d 575 (1976). Therefore, we conclude that the admission of evidence of the lineup identification in case No. 49088 did not constitute reversible error.
Defendant next contends that his convictions in case No. 49088 must be reversed due to the erroneous admission of similar-acts testimony. Again, we do not agree.
[107 MICHAPP 211] In defendant's trial in case No. 49088, the complainant in case No. 49087 testified as to the prior armed robbery perpetrated by the defendant. As a general rule, evidence of similar, but unrelated, criminal activity is not admissible to show that a criminal defendant acted in conformity with an alleged bad character. People v. Oliphant, 399 Mich. 472, 250 N.W.2d 443 (1976); People v. DerMartzex, 390 Mich. 410, 213 N.W.2d 97 (1973). It has been said that the purpose behind the rule is that the likelihood of prejudice from the admission of this sort of evidence outweighs any probative value the evidence may have. See People v. Flynn, 93 Mich.App. 713, 287 N.W.2d 329 (1979), lv. den. 409 Mich. 852 (1980). However, exceptions to this general rule are found in a statute, M.C.L. § 768.27; M.S.A. § 28.1050, and in the Michigan Rules of Evidence, MRE 404(b). In the instant case, we conclude that evidence concerning the prior, similar robbery was properly admitted pursuant to M.C.L. § 768.27; M.S.A. § 28.1050 and MRE 404(b).
The primary defense asserted by defendant was misidentification. As such, the prior, similar act was probative of one of the purposes delineated in the statute and rule. See People v. Gilbert, 101 Mich.App. 459, 300 N.W.2d 604 (1980). Additionally, there was substantial evidence to show that defendant committed the bad act. Complainant in case No. 49087 made a positive identification, stating that defendant was the man who had committed the armed robbery in question. Furthermore, there were several distinguishing, peculiar or special characteristics which made the prior robbery similar to the charged crime. Both were committed in the same Ford Motor Company parking lot and were committed at approximately the same time of day. Both robberies were perpetrated by two [107 MICHAPP 212] men with sawed-off shotguns. In short, the commission of the prior robbery bore defendant's "signature" and was probative of the defendant's identity...
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