People v. Prophet

• Decision Date: 20 November 1980
• Docket Number: Docket No. 46683
• Citation: 300 N.W.2d 652,101 Mich.App. 618
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Mallory Vincent PROPHET, Defendant-Appellant. 101 Mich.App. 618, 300 N.W.2d 652
• Court: Court of Appeal of Michigan — District of US

Page 652

300 N.W.2d 652

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Mallory Vincent PROPHET, Defendant-Appellant.

Docket No. 46683.

101 Mich.App. 618, 300 N.W.2d 652

Court of Appeals of Michigan.

Nov. 20, 1980.

Released for Publication Jan. 29, 1981.

[101 MICHAPP 619] Robert E. Slameka, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., E. Reilly Wilson, Appellate Chief Asst. Pros. Atty., Don W. Atkins, Asst. Pros. Atty., for plaintiff-appellee.

Before RILEY, P. J., and GILLIS and V. J. BRENNAN, JJ.

RILEY, Presiding Judge.

Defendant, convicted by a Detroit Recorder's Court jury of armed robbery in violation of M.C.L. § 750.529; M.S.A. § 28.797, was sentenced to 15 to 30 years imprisonment and appeals as of right.

One witness testified that on January 23, 1979, at approximately 8 p. m., while in a supermarket parking lot, defendant robbed her at gunpoint, stealing her jewelry, checkbook and various pieces of identification. The prosecution produced a second witness, under the similar acts statute, who [101 MICHAPP 620] testified that on February 17, 1979, while entering her automobile at a Detroit shopping center, defendant robbed her at gunpoint and stole her automobile. Both victims positively identified the defendant as their assailant at separately held lineups, and he was further identified by both at trial.

A third witness, representing a shopping mall in Sterling Heights, testified to an incident he witnessed on February 19, 1979, in one of their stores. He observed defendant in the presence of two women, one of whom was writing a check while the other helped defendant handle merchandise. The woman writing the check possessed identification bearing the name of the victim who had been robbed on January 23, 1979, and indeed signed the check in the victim's name. At that time, the two women, along with the defendant, were arrested.

Defendant sought to rebut this prosecution evidence by offering alibi witnesses. A part-time teacher for the Detroit Board of Education testified that defendant was enrolled in her class and was present to pick up his grades on January 23, 1979, sometime between the hours of 7:30 p. m. and 8:30 p. m. Additionally, a classmate of defendant testified that she was present at the school to pick up her grades, saw the defendant, had a conversation with him at a nearby restaurant, and thereafter was driven home by the defendant. She testified that this occurred between the hours of 7:30 and 10:00 p. m. on January 23, 1979.

Defendant's first assertion of error is that the trial judge erred in permitting, over objection, testimony of two police officers concerning the circumstances surrounding the victims' out-of-court identification of defendant. ¹

[101 MICHAPP 621] In People v. Sanford, 402 Mich. 460, 265 N.W.2d 1 (1978), the Supreme Court, in three separate opinions, analyzed the impact of MRE 801(d)(1), ² on prior Michigan law concerning the admissibility of third-party identification testimony. The identification in Sanford was not arranged by the police, as it was in the instant case; rather, it was initiated by the complaining witness, who spotted the defendant in a store the day after he was assaulted and called the police. The Supreme Court split on the question of how far the new rule goes in allowing third-party identification testimony.

Justices Williams, Moody and Coleman held that the trial judge had acted properly in admitting testimony from a police officer that was limited to the circumstances surrounding the identification procedure. Although the plurality recognized the dangers inherent in permitting third parties to bolster identification testimony given by the identifier, citing People v. Anderson, 389 Mich. 155, 205 N.W.2d 461 (1973), they concluded that the [101 MICHAPP 622] trial court has discretion to admit such testimony "when limited to the circumstances surrounding the event". Sanford, supra, 491-492, 265 N.W.2d 1.

Justices Ryan and Fitzgerald went further in analyzing the outer limits of MRE 801(d)(1). Although they, too, agreed that the officer's testimony was admissible, they disagreed with the plurality's characterization of that testimony. According to them, the officer's testimony went beyond a narrative of the circumstances surrounding the identification and consisted of a repetition of the witness's words and included a description of the witness's assertive conduct. Justices Ryan and Fitzgerald resolved that, despite what the plurality said, the officer's testimony in Sanford went "beyond the limited range of the facts and circumstances of the identification". Sanford, supra, 497, 265 N.W.2d 1. ³ [101 MICHAPP 623] Nevertheless, they concluded that the adoption of MRE 801(d)(1) permitted the admission of such testimony "under certain limited circumstances". Sanford, supra, 497, 265 N.W.2d 1.

Justices Kavanagh and Levin disagreed that MRE 801(d)(1), was meant to open the doors so widely to what had previously been inadmissible hearsay: "MRE 801(d)(1) was not designed to permit testimony by persons other than the identifying witness." Sanford, supra, 499-500, 265 N.W.2d 1.

In the wake of Sanford, perhaps all that can be said is that the exact parameters of MRE 801(d)(1) on third-party identification testimony remain unsettled. This Court, nevertheless, has previously rejected the prosecutor's argument that MRE 801(d)(1) excludes the statements at issue from the definition of hearsay. People v. Hoerl, 88 Mich.App. 693, 701-702, n.5, 278 N.W.2d 721 (1979), People v. Washington, 84 Mich.App. 750, 755-756, 270 N.W.2d 511 (1978). Although the rule has been interpreted as permitting a witness to testify concerning his or her own identification, this Court has not yet held that the rule allows a third party to testify concerning the identification of another. Cf., People v. Adams, 92 Mich.App. 619, 285 N.W.2d 392 (1979).

We believe an important distinguishing factor between Sanford and the instant case is that here the police arranged the circumstances under which the identification was made. Until the Supreme Court clarifies what those "certain limited circumstances" are alluded to in Sanford, under which third persons may testify regarding prior [101 MICHAPP 624] identification, we hold that they should be confined to relating the circumstances surrounding the identification and should not, as here, be permitted to repeat the statement of identification. This is especially true where, as here, a central issue at trial is identification and where the third party is a police officer, whose testimony may be given undue weight by the jury.

While we conclude that it was error to permit the officer to repeat the statement of identification, we also conclude that it was harmless beyond a reasonable doubt. As stated in People v. Hoerl, supra, this Court has often held that the erroneous admission of hearsay testimony is harmless where the same facts are shown by other competent testimony. People v. Vargas, 50 Mich.App. 738, 741-742, 213 N.W.2d 848 (1973), lv.den., 392 Mich. 815 (1974); People v. Harrison, 49 Mich.App. 546, 212 N.W.2d 278 (1973), lv.den. 392 Mich. 779 (1974); People v. Dykes, 37 Mich.App. 555, 195 N.W.2d 14 (1972). Here, as in Hoerl, both witnesses identified the defendant at trial and both testified that they had identified defendant at lineups. This testimony renders the error harmless.

Next defendant argues that the trial court erred by admitting evidence that defendant was present at the Sterling Heights shopping mall with two women, one of whom possessed property that was identified as belonging to the victim of the robbery for which defendant was tried. The propriety of admitting this evidence has already been decided by this Court in a previous interlocutory appeal. Pursuant to an order of this Court, we vacated the trial court's order suppressing the evidence and ruled that it was competent, citing People v. Delgado, 404 Mich. 76, 273 N.W.2d 395 (1978); People v. Duncan, 402 Mich. 1, 260 N.W.2d 58 (1977); People v. Spillman, 399 Mich. 313, 249 N.W.2d 73 (1976).

[101 MICHAPP 625] It is a well-settled rule that once a legal issue has been decided on one appeal, it may "not be raised again in a subsequent appeal after proceedings held on remand to the lower court". People v. Paintman, 92 Mich.App. 412, 416, 285 N.W.2d 206 (1979). See also, Allen v. Michigan Bell Telephone Co., 61 Mich.App. 62, 232 N.W.2d 302 (1975); People v. Radowick, 63 Mich.App. 734, 235 N.W.2d 28 (1975). Since defendant may not now collaterally attack our prior ruling, we hold that defendant's second contention is without merit.

Defendant's final claim of error relates to the trial court's failure, over objection, to instruct the jury that alibi, if established, is a perfect defense. CJI 7:2:02. The trial judge did instruct the jury that if they had a reasonable doubt whether the defendant was present at the time and place of the crime charged, that they should find defendant not guilty. CJI 7:2:01. Explaining his reasoning for not instructing on the perfect alibi avenue of relief, the judge said: "I am in disagreement on the committee's, the choice of that language. I believe that it's much too strong as a language. I will not give it."

People v. Erb, 48 Mich.App. 622, 630, 211 N.W.2d 51 (1973), stated that"(a)n instruction to the jury concerning the defense of alibi must clearly explain that this defense offers two avenues of relief for the defendant". One avenue is that founded on clear proof of the alibi. This has been termed a perfect defense. The second avenue of relief is that founded on reasonable doubt that the defendant was present at the time that the crime was committed. Although the judge in Erb did not give the perfect defense instruction, this Court did not reverse, despite the "must clearly explain" language, because the instruction given "...