People v. Solomon

• Decision Date: 22 May 1973
• Docket Number: No. 13040,No. 1,13040,1
• Citation: 47 Mich.App. 208,209 N.W.2d 257
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Willie SOLOMON, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 257

209 N.W.2d 257

47 Mich.App. 208

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Willie SOLOMON, Defendant-Appellant.

No. 13040.

Court of Appeals of Michigan, Division No. 1.

May 22, 1973.

Released for Publication July 25, 1973.

James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Edward R. Wilson, Asst. Pros. Atty., Robert A. Derengoski, Sol. Gen., for plaintiff-appellee.

Before LESINSKI, C.J., and J. H. GILLIS and PETERSON, ^* JJ.

J. H. GILLIS, Judge.

Defendant Willie Solomon was convicted by a jury on September 21, 1971 of armed robbery. M.C.L.A. § 750.529; M.S.A. § 28.797. He appeals as of right.

On July 3, 1968 two men entered a jewelry store and inquired of the owner about the sale of a watch. They left after telling the owner they would return with the requisite amount of money to purchase the watch. In a short time they returned. One of the men, who the owner subsequently identified as defendant, thrust a pistol in the owner's stomach, and announced they wanted all the watches as well as everything else in the store. The owner was forced to lie on the floor while the two men methodically confiscated a large amount of his inventory as well as the available cash.

As they exited the store, the owner grabbed his pistol and ran after them. An off-duty policeman, standing by his car in a nearby gas station, saw the two men run out of the store followed by the owner. The officer called the owner aside and chased the pair down the street, into an alley, and then into another alley. One of the pair fired at the officer, narrowly missing his head. During the chase, and at that point, the officer recognized defendant as one of the two men he was chasing. While he only saw his face for six to ten seconds, he realized he recognized defendant, having seen him on prior occasions, but did not recall defendant's name.

The other man was apprehended by other officers, but defendant escaped. Arrest warrants were issued the next day against both defendant and the captured bandit by name. Defendant was not arrested until early in 1971.

On February 19, 1971 preliminary examination was held. On that occasion the owner of the jewelry store identified defendant as the man with the gun. In response to defense counsel's inquiry about whether his testimony, given more than 2 years after the incident, was coached, the owner replied:

'The only thing they told me--that they had the guy, but that's him.'

At trial, in response to a similar inquiry of counsel, he offered:

'They didn't tell me that they had him. They told me they think they got the right fellow. They didn't say for sure that they had him.

'But I know him, through.'

Also at trial defense counsel thoroughly cross-examined the eyewitnesses about the descriptions of the wanted men which they gave to police who arrived shortly after the incident. Each witness so cross-examined recalled only the substance of his description so given, but could not recall the details. The prosecution then called the investigating officer who, over objection, recounted from his police report the details of those descriptions given him.

On appeal, defendant contends it was error to allow the officer to relate the descriptions of the wanted men given by the eyewitnesses. He argues such testimony is hearsay and is not admissible under any exception to the hearsay rule.

Hearsay evidence may be defined as that evidence offered in court of a statement made out of court to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court declarant. See McCormick, The Law of Evidence (2d ed.), § 246, p. 584. Application of the rule prohibiting such evidence reveals its principal justification is the lack of opportunity for the adversary to cross-examine the absent declarant whose out-of-court assertion is reported by the testifying witness.

However, declarations offered to show circumstantially the feelings, knowledge, or state of mind of the declarant are not subject to attack as hearsay. Hooper-Holmes Bureau, Inc., v. Bunn, 161 F.2d 102 (CA5, 1947); Callen v. Gill, 7 N.J. 312, 81 A.2d 495 (1951); Bridges v. State, 247 Wis. 350, 19 N.W.2d 529 (1945). Here the statements of the police officer were not offered to show that men of a certain description actually committed the robbery, but instead showed, in response to the cross-examination of the actual declarants, that, in fact, a detailed description of the robbers was given. Viewed in that light the officer's testimony is not hearsay since its purpose who to show that the eyewitnesses at the time could relate a description of the suspects.

The trial court ultimately ruled the officer's testimony admissible under the so-called res gestae exception to the rule against hearsay evidence. Assuming Arguendo that the complained-of testimony was hearsay, we think the trial court was correct in so ruling. As stated in People v. Ivory Thomas, 14 Mich.App. 642, 647, 165 N.W.2d 879, 881 (1968), regarding the res gestae exception:

'The question then is, was the response spontaneous and unreflecting, and Made before there was time to contrive and misrepresent. In passing upon the answer to this question, The trial judge is given considerable discretion.' (Second emphasis supplied.)

On this record we cannot say the trial judge abused his discretion.

Moreover, since the danger of hearsay evidence is the lack of opportunity for cross-examination, Even if the statements were offered to prove the truth of the matter asserted therein, and were not otherwise admissible under the res gestae exception, we would find no reversible error. All parties to this out-of-court conversation were testifying witnesses and were subject to cross-examination and recall. In such a situation any error resulting from the alleged hearsay testimony is rendered moot and harmless. People v. Rea, 38 Mich.App. 141, 195 N.W.2d 809 (1972).

Defendant's second allegation of error is that the complainant's in-court identification of him was based on an unnecessarily suggestive prior identification procedure at preliminary examination. The basis of his contention is that the indication to the victim that the police believed they had the 'right man' followed by the 'one-to-one' confrontation at preliminary examination violated due process. Consequently defendant argues the trial court erred by not conducting a separate hearing outside the presence of the jury to determine the legality of the confrontation at preliminary examination.

First, we decline to hold that an accused is entitled to a lineup every time eyewitness testimony and identification is contemplated in a court setting. See State v. Haselhorst, 476 S.W.2d 543 (Mo.1972); Grigsby v. State, 496 P.2d 1188 (Okl.Cr.App.1972); Laury v. State, Del., 260 A.2d 907 (1969).

Second, we decline to hold that eyewitness identification made in a court setting where the witness is subject to cross-examination by defense counsel is without more, impermissibly suggestive and gives rise to a substantial likelihood of irreparable misidentification. While we recognize that it is implicit in such a setting that the authorities believe, at that time, that the accused is the 'right man', what emerges from the 'one-man showup' cases is that undue suggestion does not arise merely from the fact that the authorities suspect and now accuse a certain individual. See Moye v. State, 122 Ga.App. 14, 176 S.E.2d 180 (1970), and cases cited therein.

Third, it is apparent from the transcripts at preliminary examination and at trial that the quality of the overt police suggestion had little effect on the complainant. In both instances he was positive in his identification and we have no doubt that the overt suggestion conveyed no more of a message than the setting of an in-court identification itself implies. See Laury v. State, Supra, 260 A.2d 909. It is difficult indeed, to conceptualize how an eyewitness, called to testify about events with which he is closely related can, in any event, avoid the notion that he will be asked to make an identification of the person the authorities believe is responsible for the crime. We consider a court room confrontation, where the right of cross-examination of the identifying witness is preserved, to provide adequate protection of the rights of the accused.

Fourth, we do not consider the trial court's failure to hold a separate hearing on this issue to be error. The facts surrounding the in-court identification at preliminary examination and the possibility of prior police suggestion were known to defendant and counsel prior to trial. In People v. Childers, 20 Mich.App. 639, 174 N.W.2d 565 (1969), it was held where the factual circumstances surrounding an alleged illegal confrontation are known in advance of trial, a motion to suppress evidence derived therefrom, to be timely, must be brought Before trial. Childers also holds where the facts are not known until trial or where other special circumstances make a pretrial motion impossible, such a motion may be made during trial. Then a separate hearing is required. Here, there was no timely motion, nor was the delay in so moving adequately explained.

When defense counsel did move for a separate hearing the trial judge considered the untimeliness of the motion and then ruled that if a sufficient showing of law and facts led to the conclusion that an illegal confrontation occurred, a separate hearing would be held. Since we are not convinced that an illegal confrontation occurred, the trial court we correct in not making a separate record when the issue arose during trial.

Defendant's other issues do not merit discussion.

Affirmed.

LESINSKI, Chief Judge (dissenting).

Defendant's second allegation of error is that the complainant's in-court identification of...