We agree with Judge Burns’ opinion and with the affirmance of the conviction for assault with intent to rob and steal being armed, but we are of the opinion that reversal of the felony-firearm conviction is mandated for the reasons stated in Judge Kaufman’s dissent in
People v Drake Johnson,
R. B. Burns, J. Defendant was convicted by a jury of assault with intent to rob and steal being armed, MCL 750.89; MSA 28.284, and possession of a firearm during the commission of a felony, MCL 750.227(b); MSA 28.424(2). Defendant appeals and we affirm.
Beryle Harris, the complaining witness, testified that he was a truck driver, and forced off 1-94 by a blizzard. He checked into a motel and was assigned to the ground floor. Returning to his room from a nearby restaurant, he observed a black male get out of an automobile and walk in front of him along the walk. As the witness approached his room the person turned around and walked right up to the witness. The witness said "hi” and the man said "open the door”. At this time the man was within two feet of the witness and the witness looked right at him. The witness then said "what?” and the man repeated "open the door”. The man had a gun in his right hand. The witness turned towards the door and the man came up behind him, pushing, and said "hurry up and open *514 the door or I will blast you”. The witness inserted the key in the door and just as he opened the door he wheeled around and hit the man in the mouth, knocking him across the driveway. After the man stopped rolling he got up on his knees and shot the witness in the left shoulder.
The witness testified that he got a good look at the man when he faced him in front of the door and when the man was on his knees just prior to the shot. The witness especially noticed the man’s eyes. The witness identified defendant as the man who shot him.
Defendant first argues that the trial court erred by refusing to grant him a Walker
1
hearing in this case. Defendant had made several statements to the police. In another case pending against defendant, a
Walker
hearing was held, and the same statements determined to be voluntary. The trial court in this case correctly ruled that collateral estoppel forbids defendant from relitigating this issue.
People v Gray,
Defendant next argues that the complaining witness’s in-court identification was tainted by an unnecessarily suggestive confrontation at the preliminary examination. See
People v Solomon,
Although defendant moved to strike the identification at the preliminary examination, defendant
*515
never sought to suppress the subsequent identification made at trial. Factors going to the quality of that identification were extensively developed at trial. Application of those factors to the standards for the determination of whether there existed an independent basis for identification,
People v Kachar,
Defendant also complains that it was error to deny him a lineup. The complaining witness was in a hospital at the time defendant was arrested, and left the area as soon as he was released from the hospital. Defendant was not entitled to a lineup as a matter of right.
People v Farley,
Defendant’s other claims have been considered, but do not merit discussion.
Affirmed.
Notes
People v Walker (On Rehearing),