People v. Parker
| Decision Date | 09 April 1975 |
| Docket Number | Docket No. 19685,No. 2,2 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Earl PARKER, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Peter E. Deegan, Pros. Atty., for plaintiff-appellee.
Before R. B. BURNS, P.J., and T. M. BURNS and MAHER, JJ.
Defendant Robert Earl Parker was convicted by a jury on June 7, 1973, of armed robbery. M.C.L.A. § 750.529; M.S.A. § 28.797. On December 10, 1973, defendant was sentenced to serve 4 to 20 years in prison and now appeals as of right. Since defendant's allegations of error relate to the trial court's evidentiary rulings and other procedural matters, a detailed recitation of the facts of this case is unnecessary, and thus only those facts necessary for a proper disposition of the issues will be presented.
Defendant was tried twice on the same charge because the first jury was unable to reach a verdict. Defendant now claims on appeal that he was subjected to double jeopardy by the second trial. We disagree. It has long been held in Michigan that the discharging of a jury and the holding of a new trial does not result in double jeopardy where the jury cannot agree on a verdict. 1 People v. Hall, 24 Mich.App. 509, 513, 180 N.W.2d 363 (1970), lv. den. 384 Mich. 785 (1970); People v. Duncan, 373 Mich. 650, 130 N.W.2d 385 (1964); In re Weir, 342 Mich. 96, 69 N.W.2d 206 (1955).
Defendant next contends that since suspicion of the commission of the armed robbery had already focused on him the use of an eight-picture photo display was error because there was no showing that he could not have been produced for a lineup and because the photo display was impermissibly suggestive. People v. Lee, 391 Mich. 618, 218 N.W.2d 655 (1974), is directly on point and dispositive of defendant's first claim. As to the question of suggestiveness, in pointing out that the fairness of the identification procedure must be evaluated in the light of the totality of the circumstances, the Lee Court said at 626, 218 N.W.2d at 659:
'The United States Supreme Court stated in Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), that:
"(C)onvictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so Impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.' (Emphasis added.)'
Applying this test to the case at bar, we hold that the photo display in this case was not impermissibly suggestive.
Defendant next claims by way of supplemental brief that 1968 P.A. 154, which created the district court and provided it...
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