People v. Tucker

• Decision Date: 04 October 1978
• Docket Number: Docket No. 77-1253
• Citation: 273 N.W.2d 498,86 Mich.App. 608
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Larry Leon TUCKER, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 498

273 N.W.2d 498

86 Mich.App. 608

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Larry Leon TUCKER, Defendant-Appellant.

Docket No. 77-1253.

Court of Appeals of Michigan.

Oct. 4, 1978.

Released for Publication Jan. 12, 1979.

Sandborn & O'Neill by Richard T. O'Neill, Lansing, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Peter D. Houk, Pros. Atty., for plaintiff-appellee.

Before DANHOF, C. J., and BRONSON and CAVANAGH, JJ.

PER CURIAM.

Defendant was charged with armed robbery, M.C.L. § 750.529; M.S.A. § 28.797, and found guilty by a jury as charged. He was sentenced on February 28, 1977, to a term of 20 to 40 years in prison and appeals as of right.

Defendant first contends that the on-the-scene identification of him by the complaining witness was improper because it occurred in the absence of counsel and was impermissibly suggestive.

An on-the-scene identification is a well-recognized exception to the rule requiring counsel during a corporeal identification once a suspect is in custody. People v. Williams, 57 Mich.App. 612, 226 N.W.2d 584 (1975). The rationale behind the exception is that such confrontations are reasonable police practices since they permit the police to immediately determine whether there is a reasonable likelihood that the suspect is connected with the crime and subject to arrest, or merely an unfortunate victim of circumstance. Defendant's contention that counsel was required is unfounded.

Defendant's second allegation that the identification was impermissibly suggestive is also without merit. This argument is totally undermined by the fact that although the witness identified defendant, he failed to identify the other suspect who was shown to the witness in the exact same manner as defendant. Defendant also failed to properly preserve this issue as he made no pretrial motion to suppress the allegedly suggestive identification, nor did he object to the in-court identification at trial. People v. Williams, supra. Instead, he chose to try and show the alleged suggestiveness through vigorous cross-examination of the identifying witness and the police officers present at the on-the-scene identification. Under these circumstances "defendant was neither denied due process nor his right to a fair trial". People v. Johnson, 59 Mich.App. 187, 190, 229 N.W.2d 372, 374 (1975).

Defendant next contends that the trial court erred in refusing to suppress his prior conviction record. At trial, defendant testified In camera that he would not take the witness stand if the prosecutor was permitted to go into his past record. The trial judge properly exercised his discretion under People v. Jackson, 391 Mich. 323, 217 N.W.2d 22 (1974), and ruled that seven of defendant's nine prior convictions could be used by the prosecutor for impeachment purposes. Defendant chose not to testify. It was not until after trial that defendant brought to the attention of the trial court, in a motion for new trial, that two of his prior convictions were invalid because they were obtained without benefit of counsel. Thus, under Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972), they were inadmissible for impeachment purposes and reversal would be mandated if the admission of the convictions "might well have influenced the outcome of the case". 405 U.S. at 480, 92 S.Ct. at 1018.

After a careful review of the record, we conclude that reversal is not necessary because neither the threatened nor actual use of the prior convictions would have influenced the outcome of the case. Even if the two void prior convictions had been suppressed, the prosecutor would still have been able to impeach defendant with five valid and more recent larceny related convictions. Since defendant testified that he would not take the witness stand in his own behalf if the prosecutor were permitted to go into his prior record, it is unlikely that defendant would have taken the stand even if the two invalid convictions were suppressed as five valid admissible prior convictions still remained....