People v. Whitfield

Decision Date21 November 1995
Docket NumberDocket No. 155159
Citation214 Mich.App. 348,543 N.W.2d 347
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Lee WHITFIELD, Defendant-Appellant.
CourtCourt of Appeal of Michigan — District of US

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Donald E. Martin, Prosecuting Attorney, and Susan L. LeDuc, Deputy Chief Assistant Prosecutor, for the People.

State Appellate Defender by Susan M. Meinberg, for defendant on appeal.

Before HOLBROOK, P.J., and MICHAEL J. KELLY and DANIEL J. KELLY *, JJ.

PER CURIAM.

Defendant was convicted of first-degree murder, M.C.L. § 750.316; M.S.A. § 28.548, assault with intent to commit murder, M.C.L. § 750.83; M.S.A. § 28.278, and possession of a firearm during the commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2), on June 26, 1992, and was sentenced to life imprisonment without parole for the first-degree murder conviction, fifteen to fifty years' imprisonment for the assault with intent to commit murder conviction, and a consecutive two years' imprisonment for the felony-firearm conviction. These convictions resulted from the killing of one person and the wounding of another during a holdup on January 19, 1992. The defendant was sixteen years old at the time of the offenses. Defendant appeals as of right.

Defendant asks this Court to reverse the convictions and grant a new trial because the court admitted as substantive evidence extrajudicial identifications by a third party during the prosecution's case. A review of the record indicates that testimony of investigating officers was admitted concerning other witnesses' prior identifications of defendant. MRE 801(d)(1)(C) provides that third-party testimony about another's statement of identification, where the declarant has testified subject to cross-examination about the asserted identification, is not hearsay and is admissible as substantive evidence. People v. Malone, 445 Mich. 369, 377, 518 N.W.2d 418 (1994). The trial court did not abuse its discretion in admitting the testimony of the officers concerning the identifications made by other witnesses.

Defendant next claims that in-court identifications by two prosecution witnesses were irreparably tainted by unduly suggestive viewings at a juvenile waiver hearing and that trial counsel was ineffective in his failure to move to suppress the in-court identifications. Where issues concerning identification procedures were not raised at trial, they will not be reviewed by this Court unless refusal to do so would result in manifest injustice. People v. Davis, 146 Mich.App. 537, 547, 381 N.W.2d 759 (1985). A review of the record convinces this Court that no manifest injustice is apparent from the in-court identifications of defendants by the two witnesses present at the scene because other witnesses present at the scene made positive identifications of defendant and the failure of the prosecution witnesses to identify the defendant before trial was brought out in the testimony. If there were any reasons to question the accuracy of these witnesses' identifications of defendant it was placed before the jury, which gave the testimony its due weight.

To establish that he was prejudiced by the failure of his counsel to object to these identifications, defendant would have to show that there was a reasonable probability of a different outcome. People v. Pickens, 446 Mich. 298, 302-303, 521 N.W.2d 797 (1994). We are presented with no such probability. For this reason, counsel's failure to object did not so prejudice defendant as to deprive him of a fair trial.

Defendant next claims that the court erred so as to require reversal in precluding cross-examination of an accomplice to show the total consideration the accomplice received for testifying against the defendant. The accomplice, also a juvenile, had entered a plea in probate court. A review of the testimony convinces us that the accomplice's testimony was not the result of an agreement with the prosecutor not to seek a waiver of probate court jurisdiction and that as a matter of fact a waiver had been sought for the accomplice by the prosecution and denied by the probate court. The accomplice did plead guilty of first-degree murder in the probate court and the jury was informed of this and also that the consideration for his testimony was the dismissal of two other charges. This Court finds that the consideration for the accomplice's testimony was adequately disclosed. We find no error.

Defendant next claims that prejudicial comments by the prosecutor during closing arguments denied him due process. This issue was not preserved below because an objection was not made at the time of the prosecutor's closing argument, and failure to object during trial precludes appellate review of alleged prejudicial remarks by the prosecutor unless the prejudicial effect would not have been cured by a cautionary instruction and failure to consider the issue would result in a miscarriage of justice. People v. Sharbnow, 174 Mich.App. 94, 100, 435 N.W.2d 772 (1989). The prosecutor's remarks are reviewed as a whole in evaluating the propriety of those remarks. People v. Johnson, 187 Mich.App. 621, 625, 468 N.W.2d 307 (1991). Placed in context, the prosecutor's remarks did not urge the jury to improperly "suspend its own powers of critical analysis and judgment in deference to those of the police and prosecutor," People v. Humphreys, 24 Mich.App. 411, 418, 180 N.W.2d 328 (1970), but rather urged the jury to resolve the case on the basis of reasoned consideration of the evidence, not sympathy for defendant. This Court finds that the prosecutor's remarks were not improper.

Finally, trial counsel's failure to timely appeal the decision of the probate court to waive jurisdiction over the defendant to the circuit court and subsequent failure to timely appeal by leave following the expiration of the period for appeal as of right denied the defendant effective assistance of counsel. A review of the proceedings in the probate cou...

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5 cases
  • People v. Sykes
    • United States
    • Court of Appeal of Michigan — District of US
    • April 10, 1998
    ...at 377-378, 518 N.W.2d 418.] The rule in Malone has, of course, been subsequently followed by this Court. See People v. Whitfield, 214 Mich.App. 348, 350-351, 543 N.W.2d 347 (1995). 6 Thus, the statement in defendant's brief that "[t]he Court of Appeals is divided as to whether MRE 801(d)(1......
  • People v. King
    • United States
    • Court of Appeal of Michigan — District of US
    • October 14, 2021
    ... ... that charge had defense counsel raised the defense. See ... id ... The ... remedy for ineffective assistance of counsel must be tailored ... to the circumstances of the particular case. People v ... Whitfield , 214 Mich.App. 348, 354; 543 N.W.2d 347 ... (1995). Normally, the remedy for ineffective assistance at ... trial is to order retrial. People v Gridiron (On ... Rehearing) , 190 Mich.App. 366, 370; 475 N.W.2d 879 ... (1991), amended 439 Mich. 880 (1991). But, when the ... ...
  • Hanserd v. Trierweiler
    • United States
    • U.S. District Court — Eastern District of Michigan
    • October 30, 2018
    ...suggestive. We will not review identification issues on appeal if not raised before the trial court. People v. Whitfield, 214 Mich.App 348, 351; 543 NW2d 347 (1995). Moreover, defendant has not demonstrated that he could not safely proceed to trial absent an expert. Tanner, 469 Mich. at 443......
  • Robinson v. Lafler
    • United States
    • U.S. District Court — Western District of Michigan
    • June 25, 2013
    ...injustice. In support, he cites only a Michigan Court of Appeals case that upheld the use of an identification. People v. Whitfield, 543 N.W.2d 347 (Mich. Ct. App. 1995). Indeed, none of his argument on this issue cites any U.S. Supreme Court case in support. In any case, this court agrees ......
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