*1 74 v CLEMONS PEOPLE оp Lineups—Clothing— Criminal Law—Identification—Pretrial 1. Impermissible Suggestion. her identification of Testimony by witness an identification defendant’s face rendered on the the defendant was based pretrial lineup imper- insignificant objection was clothing the defendant missibly suggestive worn in that lineup participants. away other from drew attention Sug- Law—Identification—Impermissible 2. Witnesses—Criminal gestion. determining important whether an identificаtion Two factors (a) length suggestive impermissibly procedure are: (b) offense, during the the accused time the witness is with elapsing and the identification. time between offense Jury—Included Offenses— 3. Criminal Law—Instructions Defense—Application Robbery—Alibi of Law. Armed give requested jury A of a trial court to refusal the crime of armed offenses of lesser included asserting an alibi defense and the defendant was error where apрlying properly the law on included trial court was then understood. instructions as it was offense Trial—Evidentiary Appeal 4. and Error—Record—Motions—New Hearings. Appeals has no basis for review where a defendant The Court of [1] [2] [3, [9] [5] [4] Instructions 29 Am Jur 6-8] 21 Am Jur 58 Am Jur 75 Am Jur 16 Am Jur of limitations with Am Jur 21 Am Jur which defendant is 2d, 2d, 2d, 2d, 2d, 2d, as to conviction References Evidence 371 et Trial §§ Criminal Law § Criminal New Trial § Constitutional has 2d, Criminal run, 733, 734. § Law where for Points charged. 47 ALR2d 890. 6. of lesser Law §§ Law 368. statute has not run sеq. §§ §§ 341. in Headnotes offense, against 58, 70, 494. 75. against offense statute y Clemons appeal claims on assistance of ineffective counsel but had evidentiary hearing failed to move for a new trial for an that issue at the trial court level. *2 Jury—Alibi—Burden Criminal 5. Law—Instructions to of Proof —Balanced Instructions—Identification. relatively "easy An instruction defense is to the that an alibi disprove” to advance and to refute or was not an hard erro- negated specifically neous instruction where the instruction impression prove burden that it the defendant’s to alibi by cautionary a and the was balanced instruction instruction testimony by prosecution. on identification introduced Riley, D. C. Partial Concurrence Robbery—Armed Robbery—Instructions Jury—Included 6. Of- to fenses—Record—Specific Instructions. give The failure of a the trial court to instruction on require lesser included a offenses does not reversal of a convic- of tion armed where the record reveals that the defend- merely requested ant an instruction lesser included offenses particular specifying without lesser-offense instruction he desired. Law—Appeal Jury—In- 7. Criminal and Error—Instructions Offenses—Evidence—Retroactivity—Alibi. cluded precedent requiring give specifically Case a trial court a requested jury a lesser included offense where support guilty the evidence adduced at trial would verdict of charge applicable retroactively the lesser even where the alibi asserts an defense. Offenses—Degrees 8. Statutes—Included of Crime—Instructions Jury. allowing The statute conviction for lesser included offenses must extending construed be as to all cases which the statute has effect, substantially, recognized providеd or in and for the punishment grades degrees offenses different enorm- charge ity, higher grade wherever for includes (MCLA 28.1055). 768.32; for the lesser MSA Law—Supreme 9. Constitutional Court—Clear Statement. (Const duty 1963, Court has a of clear statement art §6) 6, Detroit, from Appeal Recorder’s Justin App 74 op 1977, at De- January Ravitz, C. J. Submitted 26508.) (Docket March 1977. Decided troit. No. robbery. of armed Albert was convicted appeals. Defendant Affirmed. Generаl, A. Robert Kelley,
Frank J. Attorney Cahalan, L. William General, Derengoski, Solicitor Wilson, R. Edward Re- Prosecuting Attorney, Larry L. Rob- search, and Training Appeals, and erts, for Prosecuting Attorney, peo- Assistant ple. Posner,
M. Jon appeal. for defendant on J., D. E. Holbrook P. Allen, Before: C.D. JJ. *3 four error at Claiming P. J. instances
Allen, level, appeals right the trial court by jury from 1975 conviction of rob- April armed, 750.529; April MSA 28.797. On bery MCLA 30, 1975, for a imprisonment he was sentenced 12 period years. 6 to lineup suggestive? impermissibly
Was the claims it was he was the Defendant since wearing in the a suit and the suit only lineup one he plaid allegedly was a distinctive white place identify- when the took in the wore apartment. argument A was ing witness’s like Jones, People v App in 44 Mich rejected made and (1973). 633, 637-638; 611 205 NW2d wearing the "Several courts have concluded that People 451 v op lineup subsequent will not clothing at arrest same сlothing serves to the lineup, where the even vitiate lineup participants. other away from attention draw (1969), 355; 449 255 A2d State, App 7 Md v Hernandez (1961), cert 550; A2d State, Presley 224 Md v (1961). 389; See 82 S Ct den, 957; L Ed 2d US 9, p 500. 39 ALR3d 487 § also event, witness’s trial testi- the identification "In insignificant. She stated her objection mony the renders factor, crucial hinged a more identification defendant’s distinguished Thus, easily is the case face. App Hutton, from clothing piv- was the distinctive the defendant’s where identifying factor.” otal case before us complainant
As face, not his defendant’s testified faced with clothes, When identification. that made imper- is an identification of whether particularly are two factors suggestive, missibly (a) time the witness length of important: (b) offense, and during the accused with identifi- and the the offense elapsing between time Solomon, cation. T. J. Judge Chief adopting then Solomon, 47 Mich dissent
Lesinski’s 257, 260 208, 216; 209 NW2d lasted more apartment complainant’s robbery of complain- during which time hours than two transcript in the Nothing not blindfolded. ant was tied and argument that while counsel’s supports see could complainant apartment in the bound lineup and feet.1 The assailant’s little but his following day on the occurred identification *4 that hold we on these circumstances crime. Based 1 your Now, good part during these men were of the time a "Q. view; your they isn’t that true? apartment not in and were good keeping pretty They check on me. "A. you them all the time? didn’t see But "Q. walking steady They over me.” 'A. Yes. the lineup was not procedure impermissibly sug- gestive.
II Did the trial court in refusing err to instruct on lesser included offensesas by the de- fendant?
At the conclusion proofs, defense counsel informed the court that he would request jury instructions on lesser included offenses but did not spell out which particular lesser included offenses would be requested. Whereupon the trial court responded that since defense, alibi was the court felt charge should be "robbery armed or nothing”. Jones, v Ora Relying 379; Chamblis, NW2d 473 argues this is error mandating reversal and a new trial. "If the lesser offense is one that is necessarily in- greater, cluded within the the evidence will always
support if supports greater.” supra, at 390. "Unarmed is a lesser included offense of armed robbery. It is armed robbery absent the element weapon. of use of a If there is evidence to allow the case go higher offense, armed robbery there must necessarily be evidence adduced at trial support Chamblis, unarmed robbery.” su- pra, at 424. In response, people Jones assert Chamblis stated new rules which are not retroac- tive and do nоt apply to the instant case.2 Prior to Jones and Chamblis it had been well established Jones and Chamblis were each decided December 1975. Trial April in the instant case inwas 1975. *5 People 453 v Opinion Court of the lesser included give failure to
that lesser offense is not the charge is where not error Giddens, v People 18 evidence. supported den, lv (1969), 596 588, 589; 171 App NW2d Williams, Tyrone v (1970), 38 People Mich 760 383 (1972). 771 As was 146, 149; 195 NW2d App Netzel, in People v оpinion in majority stated (1940), cert 708 359-360; 294 NW 353, 295 Mich 85 L Ed den, 592; 61 Ct S US (1941).
" criminal case that 'To in a instruct properly convicted a crime less be defendant cannot or refuse to instruct them charged, than might, under some respect circumstances, offences the lesser charged—there one so in the be included upon being no verdict evidence whatever except one of one guilty or properly be returned could charged—is particular offence not guilty of the of error; instruct, refusing to instructing under for named, legal upon principles or rests the circumstances province it is of the court presumptions which Sparf guidance jury.’ & Hansen v for the of the declare 273).” (15 States, Sup Ct 156 US United requested instruc- governing the law Admittedly, offenses, where the testi- tions included that a different offense mony establishes clearly supporting of any testimony occurred or is devoid Compare People v offenses, the lesser is confused. Lovett, 102; 238 396 Mich NW2d concurring opinion Judge Bashara with Harrison, 226, 228; 247 v People App 71 Mich (1976). v Furthermore, People case, sug- strongly armed also an page from quoted the statement earlier gests 390 of Ora Jones applies See also retroactively. Lovett approach. of cases which follow trinity Jackson, App 478; 70 Mich 245 NW2d App Court of the Harrison, supra, and Jackson, Charles 395; 249 NW2d 132 Lovett But did not address the since retroactivity failed to mention that the trial occurred before the decision *6 Indeed, in Ora Jones or Chamblis. a case involving attempt on to com- mit, represented situation, so a retroactive clearly that failure of the to mention retroactivity suggests to us the Court may have based its on decision the statute attempts, 768.32; MCLA MSA 28.1055.
Bе this may, as it we are constrained to observe that neither Chamblis nor Lovett in- volved situations where alibi was the defense. Thus, they necessarily controlling, are not if even retroactive, in an alibi situation. We further note that at present time in the case the trial court properly applied law as was then understood. Given these facts the further fact it is still unsettled whether Ora Jones applies that retroactively, in we conclude the case before us it was not error for the court to refuse the charges. lesser included
Ill Was defendant denied effective assistance counsel?
Counsel’s ingenuity and
tenacity
pursuing the
included offense
suggests
instructions
Nevertheless,
to
answer
this
is "no”.
argues
defendant
now
counsel’s
failure
to
suppress
move to
the lineup
to
identification
or
to
suppress
given
move
statement
police
to the
representation.
denied defendant
effeсtive
Defend-
ant has
moved for a new trial or an eviden-
hearing
Thus,
tiary
issue raised.
we have
op
be based.
may
review
upon
record
no
356, 362; 241
McKenzie,
NW2d
App
634; 247
Taft,
NW2d
People v
(1976),
IV
err, reversibly,
its instruc-
Did
trial court
"relatively easy
advance
that an alibi
tion
disprove”?
hard to refute
231, 240;
McCoy,
Citing People v
interpre-
recent
Court’s
and this
Eaton,
Mich App
thereof
tation
argues
vigorously
243 NW2d
is revers-
on alibi3
instruction
the trial cоurt’s
the court
giving
this
error. Prior
ible
Defense counsel
to counsel.
thereof
gave copies
is under-
thereof which
portion
to that
objected
judge’s
the trial
atten-
and called
scored below
*7
responded
trial
McCoy
judge
The
tion
con-
McCoy
and had
he,
too,
reviewed
had
instruction
cautionary
if he added
cluded
defendant,
the
of the
to identification
respect
with
proof
Prosecution,
jury,
of
has thе burden
members of the
"The
the crime
beyond
that the Defendant committed
doubt
a reasonable
present
time and
charged
at the
he and
therefore was
and that
[sic]
alleged.
place of the offense
acquire the
raising
Defense does not
"By
alibi defense the
an
proof stays
proof.
with the Prosecution
of
The burden
burden
Defense.
shifts to the
never
your mind as to
doubt in
raises a reasonable
"If the alibi dеfense
crime,
alleged
presence
or his
the scene of the
at
the Defendant’s
participation
guilty.
therein, you
a verdict of not
should return
words,
disprove the
to overcome or
the Prosecution has
"In other
they
beyond a reasonable doubt.
must do so
defense and
alibi
time,
jury, you should examine
members of the
"At the same
relatively easy
carefully.
to ad-
testimony
is
Because an alibi
alibi
disprove.
to refute or
and hard
vance
alibi,
offering
in no
defense of
a Defendant
that in
the
"I should add
before,
you
the
of the
way
of a crime. As I’ve told
the commission
concedes
proof
to all the elements
as
has the burden
Prosecution
supplied.)
(Emphasis
charged.”
offense
App 448
74 Opinion op
Court
the
Defense
McCoy error would be corrected.4
counsel
the
persisted
judge pro-
in
trial
objection
his
givе
ceeded to
the
instruction
as he
alibi
had
proposed plus a
instruction on identifi-
cautionary
cation.
interpreta-
court’s
Significantly,
the
tion of
identical
McCoy
virtually
peo-
is
with the
ple’s
Eaton,
in People
thereof
interpretation
4 "The Court: [McCoy] opinion, they "And indicated that felt the giving cautionary Court was rather selective instruction. words, give accomplice "In other the Court did not cautionary might which would been a have instruction that have been beneficial to the Defendant. And a lack of noted giving сautionary balance in the instructions. "My view, was, reading McCoy decision, certainly own after pause give cautionary respect don’t nor hesitate to instruction with to of identification.” very simple perform. offending "We have a task to We find *8 language But, reluctantly. reverse. we we do so There should be ” Eaton, judge denigrate People room for a trial an alibi defense. v (1976). 742-743; (Emphasis supplied.) NW2d Eaton, objeсtional language People that We also note the v prove” "easy "easy was rather than to advance”. People Riley, by J. D. C. Concurrence Partial * * * defendant not in that the established committed crime”. so he could have position objectionable found because McCoy this sentence defendant’s burden to strongly implied that it was Third, judge included prove the alibi. by defendant on cautionary requested instruction cautionary instruc- identification. In McCoy, resulting omitted, what thereby tion was to constitute unbalanced Supreme Court found find In we instruc- summary, instruction. might be construed tion to be McCoy shifting the in the sense of burden of unbalanced to the whereas instruction proof negated given specifically in the instant case impression. thoughtfully sculptured
In our judgment given trial court was balanced. instruction a fair trial. Defendant received Affirmed. J.,
E.D.
Holbrook,
concurred.
(concurring).
agree
with the
D. C.
analy-
issues save their
majority’s treatment
of all
101;
sis of
and the
whether
v Ora
Assuming, would that defendant in- specific, necessarily instructions cluded, lesser offenses of armed had court refused to instruct the lower *9 by Riley, J. Partial Concurrence D. C. Lovett, offenses, I believe People supra, v would Lovett, mandate a reversal. In without acknowl- Jones, edging Ora it was supra, applying retroactively, Court did just that, People Harrison, v 71 Mich App 228; 247 (1976), NW2d 360 a and reversed conviction be- cause the judge refused defense counsel’s request to charge on attempted armed robbery.
In
present case,
the majority
appalled,
as
I,
am by the practical
is,
effect of
reversal of a conviction based on the trial court’s
refusal
to instruct on specifically requested lesser
offenses, even though applicable precedent, Kolodzieski,
NW 958
permit
would
the refusal. Despite my reluctance to
Lovett to the instant
apply
case,
I cannot accept
the majority’s rationale for distinguishing it:
Supreme Court in
"[T]he
Lovett did not address the
retroactivity
since it failed to mention that the
trial occurred before the decision in Ora Jones or
* * *
Indeed,
Chamblis.
Lovett
clearly represented
so
a
situation,
retroactive
the failure to mention retro-
activity suggests to us the Court may have based its
”
decision on the statute on attempts.
To cast aside MCLA 768.32; MSA 28.1055 by
labeling it as the "statute
on attempts”
is to
ignore all but
its final clause
disregard
and to
precedents which accord it a wider scope:
allowing
statute
"[T]he
conviction for lesser included
* * *
(now
28.1055)
offenses
768.32;
MCLA
MSA
'must
be construed
extending
as
to all cases in which statute has substantially,
effect,
or in
recognized provided
punishment
for the
of offenses of different
grades
degrees
of enormity,
charge
whеrever for
higher grade
charge
includes a
for the less’.”
v Clemons
by
D. C.
Concurrence
Partial
408, 415-416;
committed App 448 D. C. Partial Concurrence weapon.” dangerous a ted while armed with at 359. from a distinguished
This is situation to be where, bar, conflicts, the evidence as in the case at of fact for for then it a "clearly is * * * * * * [possible] of the jury as to which offenses, a beyond if wаs established reasona- any, Id, ble doubt”. 358. at expressed a similar Supreme Court senti- Chamblis, supra:
ment
”
requirement
’The
on lesser
of instructions
included
principle
elementary
offenses is
court
on the
based
jury
every
ques-
should instruct
material
* * *
tion.
The state has no interest
in a defendant
obtaining
acquittal
he is innocent
where
of the
primary
charged
guilty
necessarily
offense
but
legitimate
included offense. Nor has the statе
est
inter-
obtaining
charged
a conviction of the offense
jury
guilt
where the
the
entertains a reasonable doubt of
charged
guilty
offense but returns a verdict of
solely
unwilling
that offense
because the
acquit where it is satisfied that
the defendant has been
wrongful
guilty
constituting
necessarily
conduct
*11
Likewise,
legiti-
included offense.
a defendant has no
compelling
adopt
mate interest
an all or
nothing approach
guilt.
to the issue of
courts are
Our
gambling
discovery
halls but forums for the
’ ”
417,
Martin,
quoting People
truth.
395 Mich at
v St
524,
166, 170;
390,
533;
Rptr
Cal 3d
(1970).
83 Cal
463 P2d
added.)
(Emphasis
believe,
supra, compels
I
While
ret-
supra,
of Ora
application
logi-
roactive
and
Chamblis,
well,
cally,
by my
as
do not
grudging application
prac-
of those cases condone a
whereby
forged
tice
new rules are
indirection.
by
of our
Certainty
uniformity,
goals
two basic
legal
are nоt advanced
retroac-
system,
by de facto
jure
Supreme
Ours is a de
and the
tivity.
system,
by D. C.
Concurrence
Partial
1963,
Const
has a
of clear statement.
duty
Court
* * *
("Decisions
court
supreme
of the
art
§
contain a
writing
be in
and shall
concise
shall
* * *
decision”.)
for
reasons
each
statement
chooses,
Supreme
it so
Obviously, when
reasoned
Court can
a well
discourse on
produce
Rich,
See,
People v
retroаctivity.
e.g.,
(1976). If,
Rich,
399;
under
"the
* * *
the old rule
general
reliance on
[and]
of the new
application
effect of retroactive
rule on
factors”,
are "key
of justice”
administration
upon
397 Mich at
then
is incumbent
address
acknowledge
myriad
Jones and its
problems engendered
proge
ny1_
recent, yet meager,
effort in
Court’s most
Thomas,
826;
reversing
part
neither the Const and reconcile the law for nor the Court’s § bench, obligation explain popu bar and lace.