People v. Malone

• Decision Date: 06 April 1992
• Docket Number: Docket No. 120518
• Citation: 483 N.W.2d 470,193 Mich.App. 366
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Donald MALONE, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 470

483 N.W.2d 470

193 Mich.App. 366

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Donald MALONE, Defendant-Appellant.

Docket No. 120518.

Court of Appeals of Michigan.

Submitted Jan. 15, 1992, at Detroit.

Decided April 6, 1992, at 9:00 a.m.

Released for Publication May 19, 1992.

Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of Research, Training, and Appeals, and Jeffrey Caminsky, Asst. Pros. Atty., for the People.

Neil J. Leithauser, Oak Park, for defendant-appellant on appeal.

Before MURPHY, P.J., and MARK J. CAVANAGH and CONNOR, JJ.

MARK J. CAVANAGH, Judge.

Following a jury trial, defendant was convicted of first-degree 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). Defendant was sentenced to life in prison for the murder conviction and to a consecutive two-year term for the felony-firearm conviction. In this appeal, brought as of right, defendant claims that he was denied a fair trial because of evidentiary error and prosecutorial misconduct and that the evidence of his guilt was insufficient. We affirm.

At trial, Robin Lasenby, a hostile witness, testified that he was outside with Carey Jackson on the evening of July 26, 1988, when he noticed two men jump out of a black Omni and run toward a local grocery store. Lasenby was able to identify the defendant as one of the two men because he had seen him around the neighborhood during the past couple of years. It appeared to this witness that the defendant was carrying a dark object in his hand and that the two men were "about to stretch somebody." A minute later, Lasenby heard three loud sounds that could have been gunfire and he saw the men return and the black car speed away.

A couple of days later, the defendant approached the witness and told him that what he did was really none of the witness' business. Lasenby responded that what they were discussing would go no further. And, after failing to appear to testify at the preliminary examination, this witness was kept in police custody as a material witness.

Carey Jackson testified next and confirmed that he had been with Robin Lasenby when the shooting occurred. However, contrary to a previous statement he had purportedly given to the police, he could not identify either of the men that had gotten out of the black Omni. When questioned about his earlier signed statement identifying defendant as one of the men, the witness denied that the statement or signature was his. Carey Jackson also had been detained by the police as a material witness.

The police officer who had interviewed Carey Jackson then testified that, in a prior statement, Carey Jackson had identified the defendant as one of the men he had seen that day. According to the police officer, the witness also stated that, after hearing three shots, he saw the defendant with a black pistol in his hand. The trial court instructed the jury that this evidence was being admitted to impeach the earlier testimony of Carey Jackson.

The police officer that was in charge of the investigation also testified with regard to a photographic lineup session he had had with Carey Jackson. When defendant objected to this testimony, the trial court ruled that the evidence could be admitted as substantive evidence. The officer's testimony was permitted to continue, and he recalled Carey Jackson picking the defendant's picture out of the photographs displayed.

The prosecution also introduced the testimony of the attorney who had been present with Carey Jackson at the photographic lineup. This witness testified that Carey Jackson said that he thought he recognized two people and that "Number Six was the guy who had the gun."

One of the last witnesses for the prosecution was the victim's friend, Melvin Mann. He testified that he was in a telephone booth outside the grocery store when he heard some shots and saw the defendant run from the back of the Jeep where the victim had been sitting. Mann also testified that there had been bad feelings between the victim and the defendant.

Just before closing arguments, the trial court ruled that the third-party testimony regarding the extrajudicial identification of the defendant was not limited to impeachment and would be admitted as substantive evidence. The trial court noted that if the identification procedure was unfair or caused bias, the court in its discretion could decide not to admit the evidence.

In this appeal, defendant contends that the trial court improperly admitted, over defense objection that the testimony was hearsay, third-party testimony regarding pretrial identification statements. We disagree.

"A statement is not hearsay if ... [t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is ... one of identification of a person made after perceiving him." MRE 801(d)(1)(C). Furthermore, third-party identification testimony by a police officer, including repetition of the statements, is not hearsay, and the admission of such testimony is within the discretion of the trial court. People v. Newcomb, 190 Mich.App. 424, 430, 476 N.W.2d 749 (1991); ¹ MRE 801(d)(1).

Although the issue has not been clearly addressed in our case law, we agree with federal court decisions that have held that the rule was intended, in part, to solve the problem of a witness identifying a defendant before trial but then refusing at trial to acknowledge the identification because of fear of reprisal. United States v. Jarrad, 754 F.2d 1451, 1456 (C.A. 9, 1985), relying on United States v. Elemy, 656 F.2d 507 (C.A.9, 1981). In this situation, the witness' prior identification can be introduced into evidence only by a third party who was present at the original identification.

In this case, we find no error in the trial court's decision to admit the third-party identification testimony. The declarant of the extrajudicial statement testified at trial and was subject to cross-examination. Consequently, under MRE 801(d)(1), the statement is not hearsay. Secondly, the trial court acknowledged that admission of the third-party identification testimony was discretionary, and it apparently exercised this discretion after determining that there was nothing unfair or biased about the identification procedure.

Even if we were convinced that this type of testimony should be inadmissible, admission in this case was not prejudicial because two very credible witnesses for the prosecution positively identified the defendant. It is not reasonably possible that in a trial free of the error complained of even one juror might have voted to acquit the defendant. People v. Robinson, 386 Mich. 551, 194 N.W.2d 709 (1972).

Defendant next argues that the prosecutor made improper remarks during closing argument that denigrated the defense and injected prejudicial and inflammatory material into the case. This issue, however, has not been preserved for our review because defendant did not object to the statements at trial. Absent an objection during trial, appellate review of improper prosecutorial closing arguments is precluded unless the prejudicial effect was so great that it could not have been cured by an appropriate instruction and failure to consider the issue would result in a miscarriage of justice. People v. Crawford, 187 Mich.App. 344, 354, 467 N.W.2d 818 (1991).

In this case, although the prosecutor may have used colorful language during her closing argument, her remarks were not improper. Furthermore, any prejudice occasioned by the prosecutor's remarks could have been cured by an instruction.

Defendant further contends that he was denied a fair trial because the prosecution withheld during discovery evidence that would have contradicted testimony identifying defendant as the person who shot the victim. However, this issue was not properly preserved because it was not raised before and addressed by the trial court. People v. Strunk, 172 Mich.App. 208, 210, 431 N.W.2d 223 (1988).

Defendant's final argument, that the evidence is insufficient to support a conviction of first-degree murder, is also without merit. This Court reviews the sufficiency of evidence by examining it in the light most favorable to the prosecutor in order to determine whether a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt. People v. Hampton, 407 Mich. 354, 368, 285 N.W.2d 284 (1979).

Our review of the record persuades us that the evidence was sufficient to sustain the defendant's conviction of first-degree murder. Multiple witnesses, who knew defendant for years in their neighborhood, identified him as one of two men who arrived at the scene just before the shooting. There was also evidence of hard feelings between the defendant and the victim. At least one witness testified that defendant had been carrying a gun. Four bullet holes were found in the driver's seat of the Jeep in which the victim was shot. In light of this evidence, we find that a rational trier of fact could have concluded that the evidence supported defendant's conviction of first-degree murder.

Affirmed.

MURPHY, P.J., concurred.

CONNOR, Judge (concurring).

I concur in the result reached only because Administrative Order No. 1990-6, 436 Mich. lxxxiv, requires this Court to decide this case in accordance with People v. Newcomb, 190 Mich.App. 424, 429-430, 476 N.W.2d 749 (1991). Were it not for the administrative order, I would reverse defendant's convictions and remand for a new trial.

I believe the statement of facts as contained in the majority opinion should be supplemented by the following material for clarification. Over defense objection, the court allowed police officer Marvin Butler to read a statement given by witness Carey Jackson following...