Dеfendants were convicted by a jury of first-degree felony murder, MCL 750.316; MSA 28.548, armed robbery, MCL 750.529; MSA 28.797, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). Defendant Smith was sеntenced to a mandatory term of life imprisonment for first-degree murder, to from 40 to 60 years imprisonment for armed robbery, and to two years imprisonment for thе felony-firearm offense. Defendant Reid was also sentenced to life imprisonment for first-degree murder and to two years for the felony-firearm conviction, but was sentenced to from 20 to 40 years imprisonment for the armed robbery. Both defendants appeal by right, and we have consolidated the two appeals.
The charges arose from defendants’ March 10, 1979, robbery of Lee’s Texas Style Barbeque on Fenkell Avenue in Detroit. During the course of that robbеry defendant Smith shot and fatally wounded the owner of the restaurant, Lee Kingcade.
In the first of eight issues on appeal, defendants argue that the trial court committed error requiring reversal by instructing the jury that they could infer the element of malice necessary for a murder conviction from the intention to commit the underlying felony of armed robbery.
1
The Supreme Court recently has held that such an in
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struction is incorrect since malice is an essential element of murder that cannot be inferred solely from the intent tо commit the underlying felony.
People v Aaron,
Defendant Smith argues that the instructions on murder were also erroneous because they failed to limit the definition of malice to an intent to kill. See
People v Garcia,
Defendants’ next argument on appeal is that their multiple сonvictions for armed robbery and first-degree felony murder constituted double punishment in violation of the Double Jeopardy Clauses , of the United States and Michigan Constitutions. We agree and therefore vacate defendants’ convictions and sentences for armed robbery.
People v Anderson,
Defendant Reid argues that he wаs denied effective assistance of counsel when defense counsel failed to move to suppress his identification by two
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prosecution witnessеs, Winifred Reed and Bobby Todd. Ms. Reed, in addition to identifying defendant Reid at trial, identified Reid’s picture in a photographic display and picked him out at a cоrporeal lineup. Defendant argues that the photographic display was improper because it was conducted without counsel even thоugh defendant was already in custody in Atlanta, Georgia. He also contends that Ms. Reed’s lineup identification was tainted by the prior photographic disрlay and by the fact that Ms. Reed was told by the police that they had "possible suspects” for her to look at. Defendant Reid argues that Bobby Todd’s identificаtion was tainted by impermissibly suggestive identifications at the preliminary examination and an earlier trial. See
People v Solomon,
A criminal defendant may be denied the right to a fair trial if his attorney makes a serious mistake. However, a new trial is not justified unless the reviewing court concludes that but for the mistake the defendant would have hаd a reasonably likely chance of acquittal.
Garcia, supra,
266,
People v Degraffenreid,
Initially, the record does not reveal that the photographic display was made without substitute counsel. Ms. Reed recalled the presence of an individual during the display, but could not remember if he introduced himself as a defense attorney. 2 Moreover, the corporeal lineup was not tainted by the fact that Ms. Reеd was told that the *344 police had "possible suspects”. Whenever a witness is called in for a lineup that witness may infer that the lineup will contain possible suspects. The fact that the police stated the obvious hardly can be seen as an inducement of the witness to pick someone out of the lineup. Cf. United States v Gambrill, 146 US App DC 72, 75, fn 3; 449 F2d 1148 (1971). Even if we were to assume that counsel was not present at the photographic display and that Ms. Reed’s trial identification was impermissibly tainted, defense counsel’s failure to suppress identification was not such a mistake but for which defendant Reid would have had a reasonably likely chancе of acquittal.
Witness Bobby Todd’s testimony unequivocally placed both defendants in the restaurant booths where Ms. Reed stated that the two robbers sat prior to the crime. Even without Ms. Reed’s actual identification linking defendant Reid to the event, we cannot say that a contrary verdict was reasonably likely. We disagree with the contention that Todd’s identification was tainted by his prior opportunities to observe the defendants in court. Unlike
Solomon, supra,
there is no indication in this case that the police suggested to Todd that defendant was the offender, nor were the earlier court procedures conducted
in camera.
Further, the time between the robbery and trial confrontation was only six months, as opposed to the two and one-half years in
Solomon.
Todd had a more than adequate opportunity to observe defendant in the restaurant. His attention was drawn to Smith and Reid by their conduct: they sat in separate booths with their backs to one anоther, yet acted as if they were together.
Cf. People v Belenor,
Defendants’ remaining issues merit only limited discussion. The trial court did not err in instructing the jury on alternative theories of defendant Reid’s guilt, that is, as a principal or as an aider and abettor.
People v Paintman,
In the final claim on appeal, defendant Smith argues that the instruction on malice presented the jury with alternative theories of guilt, creating the possibility of a nоnunanimous verdict. See
People v Olsson,
Defendants’ convictions and sentences for first-degree murder and possession of a firearm during the commission of a felony are affirmed. Defendants’ convictions for armed robbery are reversed and their respective sentences for armed robbery vacated.
Notes
The pertinent portion of the instruction in question read:
"Fourth, for murder you must find that the defendant or defendants consciously аnd knowingly performed the act which caused the death. The defendants must have either intended to kill, that is, he must have intended to do the act knowing it would result in deаth or great serious bodily injury or he must have knowingly created a very high risk of death with the knowledge that it probably would cause death. If you find that the defendants cоnsciously intended to commit, attempt or assist another in the crime of robbery, you may infer that he knowingly created a very high risk of death with the knowledge that it probably would cause death." (Emphasis supplied.)
Defendant Reid has declined to file a motion with the trial court for an evidentiary hearing on this question. Since we are able to conclude that defendant was not denied effective assistance of counsel without resolving the question, we decline to remand for such a hearing.