People v. McAllister

• Decision Date: 06 September 2000
• Docket Number: Docket No. 212690.
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Larry Lee McALLISTER, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

616 N.W.2d 203

241 Mich. App. 466

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Larry Lee McALLISTER, Defendant-Appellant.

Docket No. 212690.

Court of Appeals of Michigan.

Submitted April 4, 2000, at Detroit.

Decided June 20, 2000, at 9:00 a.m.

Released for Publication September 6, 2000.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Roberta L. Wolfe-Bryant, Assistant Prosecuting Attorney, for the people.

Craig A. Daly, Detroit, for the defendant.

Before HOOD, P.J., and GAGE and WHITBECK, JJ.

PER CURIAM.

Defendant was convicted, following a jury trial, of assault with intent to commit murder, M.C.L. § 750.83; MSA 28.278. Defendant was sentenced to twelve to twenty years' imprisonment, and he appeals as of right. We affirm.

The victim, John Webster, received a telephone call from a woman named "Jackie" who was interested in purchasing his car. The victim and his friend, Eric Valla, met Jackie and allowed her to test drive the car. Jackie agreed to buy the car, but indicated that she needed to obtain additional funds from a friend in a bar. Jackie drove the car to the bar, parked the car in the alley behind it, and entered the bar.

Two men were in the alley hitting a baseball with an aluminum bat. Defendant was carrying the baseball bat and approached the car. There were "For Sale" signs on the car. Defendant asked Webster about the car and got in the driver's seat. Defendant got out of the vehicle, and Webster got out of the passenger's side and proceeded to enter the driver's side. As he entered the car, defendant struck him in the legs with the bat. Defendant proceeded to beat Webster with the bat. The second man, who had been playing ball with defendant, proceeded to beat Webster with a walking stick or cane. After being threatened by the second man, Valla ran to call for help. There were homes located behind the bar. Two neighbors, Timothy Webb and Dana Arnett, saw the two men beating Webster. The day after the assault, police officer Richard Lucas received an anonymous tip that defendant had committed the offense. Officer Lucas went to the home of defendant's mother and obtained a picture of defendant. Defendant was apprehended approximately one year later in Texas. Before trial, defense counsel took issue with the ability of the eyewitnesses to identify defendant. At trial, Webster, Webb, and Arnett identified defendant as the perpetrator of the assault although they acknowledged that his appearance had changed since the time of the offense.

Defendant first argues that the trial court denied his rights of confrontation and a fair trial by allowing police testimony regarding receipt of an anonymous telephone call identifying defendant as the perpetrator of the assault. We agree that the admission of this evidence was erroneous, but hold that the error was harmless. In People v. Wilkins, 408 Mich. 69, 72-73, 288 N.W.2d 583 (1980), police were able to charge the defendant with carrying a concealed weapon through the use of an informant's tip. Police officers began to conduct surveillance as a result of the tip and began to follow the defendant as he drove his car. The police attempted to stop the car, but the defendant refused to pull over and threw a shiny object out of the car. The police retrieved the object, an automatic pistol. At trial, the police testified that the anonymous tip identified the defendant, his clothing, his car, and his location. The prosecution asserted that the substance of the information provided by the anonymous tip was admissible because it was not offered for the truth of the matter asserted. Rather, the evidence was offered to establish the reason that the police took subsequent action. Our Supreme Court explained that, even if such testimony was offered for a purpose other than its truth, it must also be determined what the testimony tends to establish and whether that evidence is probative of a material issue in dispute. The Court concluded that admission of the testimony was improper, even if marginally relevant under MRE 401, because the evidence was not limited to its proper scope as required by MRE 105. Wilkins, supra at 73, 288 N.W.2d 583. The Court also held that the prejudicial effect far outweighed the probative value when the jury was provided with testimony regarding the content of a statement of an unsworn informant, the unsworn informant was not produced at trial, and the statement was the only evidence to identify the defendant as the perpetrator of the offense.

In the present case, we agree that the admission of the information contained within the anonymous tip should have been limited to explain why police met with defendant's mother. MRE 105. However, we cannot conclude that the prejudicial effect of the substance of the informant's tip far outweighed its probative value. MRE 403. Unlike the Wilkins decision, the evidence presented in this case was not limited to statements given to police by unknown witnesses who were never produced in court. Rather, three witnesses were able to identify defendant as the assailant, and a waitress from the bar placed defendant at the scene. Admission of the evidence does not require reversal, People v. Lewis, 168 Mich.App. 255, 266-267, 423 N.W.2d 637 (1988), especially where the erroneous admission of the testimony was not outcome determinative. People v. Lukity, 460 Mich. 484, 496, 596 N.W.2d 607 (1999); People v. Murray, 234 Mich.App. 46, 63-64, 593 N.W.2d 690 (1999).

Defendant next argues that he was denied a fair trial on the basis of the trial court's failure to allow a live lineup. We disagree. The decision to grant the defendant's motion for a lineup lies within the trial court's discretion. People v. Gwinn, 111 Mich.App. 223, 249, 314 N.W.2d 562 (1981). A decision constitutes an abuse of discretion when it is so grossly violative of fact and logic that it evidences perversity of will, defiance of judgment, and the exercise of passion or bias. People v. Gadomski, 232 Mich.App. 24, 33, 592 N.W.2d 75 (1998). A right to a lineup arises when eyewitness identification has been shown to be a material issue and when there is a reasonable likelihood of mistaken identification that a lineup would tend to resolve. Gwinn, supra.

In the present case, eyewitness identification was a material issue; however, a lineup would not have resolved any "mistaken identification." While defendant takes issue with the identification of Webb and Arnett, who witnessed the crime from a distance of thirty to fifty feet, Webster sat in the vehicle with defendant before the assault and clearly identified defendant as his assailant. Accordingly, the trial court did not abuse its discretion in denying the motion for a lineup.

Defendant next argues that the trial court erred in allowing witness Webb to identify defendant at trial because there was no independent basis for an in-court identification when Webb was tainted by the examination of a single photograph of defendant. We disagree. The trial court's decision to admit identification evidence is reviewed for clear error. People v. Kurylczyk, 443 Mich. 289, 303, 505 N.W.2d 528 (1993). In People v. Gray, 457 Mich. 107, 111, 577 N.W.2d 92 (1998), our Supreme Court held that improper suggestion in photographic identification procedures may arise when the witness is shown only one person or a group of people in which one person is singled out in some way. In the present case, the procedure itself was suggestive in that Webb was shown only one photograph of defendant. However, Officer Lucas testified that he was unable to locate a "mug shot" photograph of defendant and the only photograph he obtained was that of defendant on a boat. Accordingly, any photographic lineup would also have been impermissibly suggestive in that it would have singled out defendant shown on a boat. However, when a pretrial identification has been improperly conducted, an independent basis for any in-court identification must be established. Id. at 114-115, 577 N.W.2d 92. In the present case, Webb testified that there was an independent basis for his identification because he could not recall ever being shown a photograph of defendant by police. Rather, Webb testified that the distance, daylight, and duration surrounding the circumstances of the assault was sufficient to allow him to identify defendant, who had in Webb's opinion, attempted to alter his appearance at the time of trial. People v. Kachar, 400 Mich. 78, 83, 252 N.W.2d 807 (1977). Accordingly, we cannot conclude that the trial court's decision to admit identification evidence was clearly erroneous. Kurylczyk, supra.

Defendant next argues that he was denied a fair trial when the prosecutor denigrated the presumption of innocence and right to trial. We disagree. When reviewing allegations of prosecutorial misconduct, we examine the alleged misconduct in context to determine whether it denied the defendant a fair and impartial trial. People v. Reid, 233 Mich.App. 457, 466, 592 N.W.2d 767 (1999). In the present case, there was no objection to the alleged improper statement. Review of unpreserved allegations of prosecutorial misconduct is foreclosed unless no curative instruction could have removed any undue prejudice to defendant or manifest injustice would result from failure to review the alleged misconduct. Id. Defendant's contention, that the prosecutor led the jury to equate defendant with an obviously guilty person, is without merit. The prosecutor was merely questioning prospective jurors regarding their knowledge of the presumption of innocence and the right to trial.

Defendant next argues that he was denied due process of law at sentencing when the trial court refused to respond to challenges to inaccurate information contained in the presentence investigation report (PSIR) and refused to disclose...