People v. Poe

• Decision Date: 28 October 1970
• Docket Number: No. 1,Docket No. 4591,1
• Citation: People v. Poe, 27 Mich.App. 422, 183 N.W.2d 628 (Mich. App. 1970)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ralph PEO, Defendant-Appellant
• Court: Court of Appeal of Michigan

Page 628

183 N.W.2d 628

27 Mich.App. 422

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ralph PEO, Defendant-Appellant.

Docket No. 4591.

Court of Appeals of Michigan, Division No. 1.

Oct. 28, 1970.

Released for Publication Feb. 23, 1971.

Philip A. Gillis, 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., Owen J. Galligan, Asst. Pros. Atty., for plaintiff-appellee.

Before DANHOF, P.J., and V. J. BRENNAN and KELLEY, ^* JJ.

DANHOF, Presiding Judge.

The defendant, while represented by appointed counsel, was found guilty of armed robbery, M.C.L.A. § 750.529 (Stat.Ann.1970 Cum.Supp. § 28.797) after a trial by jury. The evidence against him consisted of eyewitness testimony. He appeals raising numerous allegations of error.

The defendant's first contention is that it was error to allow a police officer to testify regarding previous identifications made by witnesses at police showups. Defendant also contends that it was error to admit into evidence, and to allow to be taken into the jury room, certain police records known as showup sheets. These showup sheets are records of the showups made by the officer in charge who was on the stand when they were admitted.

At trial, four witnesses made in-court identifications of the defendant. The defendant then introduced, without objection, two showup sheets that indicated that one of the witnesses had made an equivocal identification and that another witness had identified someone other than the defendant. The prosecution then introduced, over objection, the testimony of the police officer that the two other witnesses had made positive identifications at showups. The prosecution then introduced, again over objection, showup sheets which also indicated that these witnesses had made positive identifications. The identifying witnesses also testified to the prior identification. When the jury retired they took all four showup sheets into the jury room with them.

The objection raised is that the officers' testimony and the showup sheets are hearsay and thus inadmissible. The defendant concedes that testimony by an identifying witness regarding a prior identification is admissible but he contends that such testimony when offered by a third party is inadmissible as hearsay.

Turning first to the testimony of the police officer we believe that such testimony is admissible in spite of its hearsay nature. Such testimony has been held admissible in two Michigan cases. People v. Londe (1925),230 Mich. 484, 203 N.W. v. Londe (1925), 230 Mich. 484, 203 N.W. 284, 166 N.W.2d 506. While the Michigan cases do not discuss hearsay there is abundant authority for admitting such testimony as an exception to the hearsay rule.

In People v. Gould (1960), 54 Cal.2d 621, 626, 7 Cal.Rptr. 273, 275, 354 P.2d 865, 867 Justice Traynor explained the rule of admissibility as follows:

'Evidence of an extrajudicial identification is admissible, not only to corroborate an identification made at the trial * * * but as independent evidence of identity. Unlike other testimony that cannot be corroborated by proof of prior consistent statements unless it is first impeached, * * * evidence of an extrajudicial identification is admitted regardless of whether the testimonial identification is impeached, because the earlier identification has greater probative value than an identification made in the courtroom after the suggestions of others and the circumstances of the trial may have intervened to create a fancied recognition in the witness' mind. * * * The failure of the witness to repeat the extra-judicial identification in court does not destroy its probative value, for such failure may be explained by loss of memory or other circumstances. The extra-judicial identification tends to connect the defendant with the crime, and the principal danger of admitting hearsay evidence is not present since the witness is available at the trial for cross-examination.'

See also State v. Chaney (1967), 5 Ariz.App. 530, 428 P.2d 1004; Montos v. State (1956), 212 Ga. 764, 95 S.E.2d 792; People v. Slobodion (1948), 31 Cla.2d 555, 191 P.2d 1; Preston v. Commonwealth (Ky.1966), 406 S.W.2d 398; Proctor v. State (1960), 223 Md. 394, 164 A.2d 708; State v. Nordstrom (R.I.1968), 244 A.2d 842; State v. Redding, (Iowa 1969, 169 N.W.2d 788; Clemons v. United States (1968), 133 U.S.App.D.C. 27, 408 F.2d 1230; 4 Wigmore Evidence (3d ed.), § 1130, p. 208.

Thus it was not error to admit the police officer's testimony.

The admission of the showup sheets presents a separate hearsay problem. While testimony regarding a prior identification is admissible the sheets themselves are a form of hearsay and to be admissible they must fit within another exception to the hearsay rule. We do not believe that a sufficient showing was made to bring the sheets within any exception to the hearsay rule and therefore their admission was error. However, we do not believe that this error requires a reversal.

The officer who prepared the showup sheets was available for cross-examination as were the identifying witnesses. While the fact that the declarant is available for cross-examination does not automatically render the admission of hearsay harmless, People v. Kaplan (1931), 256 Mich. 36, 239 N.W. 349, we believe that the opportunity to cross-examine is relevant to determining whether or not the admission of the evidence was harmless error.

It has often been held that when hearsay has been admitted there is no reversible error when the same facts are shown by competent evidence. People v. Kregger (1953), 335 Mich. 457, 56 N.W.2d 349, cert. den. 355 U.S. 929, 78 S.Ct. 413, 2 L.Ed.2d 415; People v. Hawks (1919), 206 Mich. 233, 172 N.W. 405; People v. Goodrode (1903), 132 Mich. 542, 94 N.W. 14; People v. Gregory (1902), 130 Mich. 522, 90 N.W. 414; People v. Hallaway (1970), 25 Mich.App.604, 605, 181 N.W.2d 546. In this case both the officers and the identifying witnesses testified to the prior identifications.

Because of the foregoing, we do not believe that the erroneous admission of the showup sheets requires a reversal. Nor do we believe that the fact that the jury took the sheets into the jury room requires this result. As we have seen, it was entirely proper to introduce evidence of the prior identification and the showup sheets merely duplicated this evidence. The defendant's basic objection has been to allowing any proof of a prior identification and he does not dispute the truth of the matter contained in the showup sheets. Also, of the four sheets, two contained matter favorable to the defendant's case. On these facts we do not believe that a reversal is required.

The defendant contends that the police showup was conducted so unfairly as to deprive him of due process of law. This case was tried before the decisions in United States v. Wade (1967), 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Gilbert v. California (1967), 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, and thus the issue of right to counsel at the showup is not involved. Stovall v. Denno (1967), 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199. Under the doctrine of Stovall, supra, we must look to the totality of the circumstances to determine if the showup was so unnecessarily suggestive and conducive to irreparable mistaken identification that it amounts to a denial of due process of law.

The defendant points to several alleged defects in the showups. He contends that one witness had a one-to-one confrontation with him prior to the showup, that others in the showup were so unlike him in appearance that the identifications must be considered invalid, and that the witnesses were brought together and allowed to arrive at a consensus identification. Examination of the record fails to support these allegations. The defendant also contends that he was prejudiced because the police showed the witnesses photographs, including one of the defendant, before the showups were held. The record shows that the witnesses were shown several hundred photographs and there is nothing to indicate that the procedure followed was unduly suggestive. Applying the test of Stovall, supra, we hold that the defendant was not denied due process of law.

The defendant contends that the trial court erred in refusing to recall a witness. Such matters are within the discretion of the trial court. People v. Hossler (1904), 135 Mich. 384, 97 N.W. 754. We find no abuse of discretion here.

At the conclusion of the prosecution's case, the trial court granted the prosecution's motion to exclude the defense witnesses. The defendant contends that this was error. It is well settled that this question is within the trial court's discretion. People v. Williams (1967), 6 Mich.App. 412, 149 N.W.2d 245. It does not appear...