Defendant was convicted of armed robbery, MCLA 750.529; MSA 28.797 and appeals.
Mr. John Starwas, on March 2, 1972, was robbed at gun point while working in his party store. Some two weeks after the robbery, Officer Wolak received an informant’s tip that defendant had committed the robbery. Acting on this information, Officer Wolak showed Mr. Starwas and Eddie McClure, an employee present at the time of the robbery, three photographs. Two of the photographs were pictures of the defendant and a third picture was of another individual. Mr. Starwas identified the defendant as the robber from the photo display. However, Mr. McClure was not able to positively identify defendant. Shortly after the photo identification, a lineup was conducted and Mr. Starwas identified the defendant as the robber.
At defense counsel’s request, a hearing on the admissibility of the identification procedures was held prior to trial. At this hearing, Mr. Starwas testified his identification was from memory and not based on the photo display. The court ruled that the lineup identification and an in-court identification would be admissible, however it would *303 not allow testimony concerning the photo identification. At this juncture defense counsel, recognizing that Mr. Starwas would testify that his identification was based on his memory, waived all objections to the identification procedure. Defense counsel did not object to the introduction of any identification testimony at trial, and in her closing argument to the jury emphasized the suggestiveness of the whole procedure.
Prior to the beginning of trial, the court granted the prosecutor’s motion to bar defendant’s alibi witnesses because the notice of alibi statute, MCLA 768.20; MSA 28.1043, had not been complied with. 1 During the cross-examination of defendant, the prosecution made reference to the potential testimony of defendant’s alibi witnesses. The prosecutor then waived his objections to the notice requirement. Defendant subsequently'produced several alibi witnesses.
Defendant’s first allegation on appeal is that the two-man photo display was so inherently suggestive that the trial court erred in failing to exclude Mr. Starwas’ in-court identification of defendant. Defendant does not, per se, challenge the lineup, except to argue that it was tainted by the improper photo procedure.
While the photo identification procedure used in this case may have been suggestive, an in-court identification is admissible if the complaining witness is able to demonstrate an independent recollection.
People v Lee,
Defendant, in conjunction with the first issue, argues that he was entitled to be represented by counsel at the pre-custody identification and cites
People v Jackson,
"Defense counsel’s argument that the right to counsel attaches once 'an investigation has focused’ on a particular suspect is an inaccurate one, insofar as it is supposed to refer to 'pre-custody’ investigation. The cases to which the defendant refers are in-custody not precustody cases.
"We decline to extend the reasoning of Franklin Anderson [supra] to the pre-custody, pre-questioning, mere suspicion phase that was evidenced here. It is not feasible to require appointment of counsel in cases of pre-custody photographic showups where there is no detention of the defendant since under such a rule each photograph arguably depicts a suspect and therefore each person whose photograph appears in the photographic display, or perhaps even the 'mug book’ would require the representation of counsel. That would be impossible and absurd.”
We conclude that there is no right to counsel at a pre-custody photo display.
*305
Defendant next contends that the trial court’s failure to
sua sponte
conduct the hearing on the reliability of the police informant, or to require the production of that informant, denied defendant the right to confrontation. The many cases cited by defendant are concerned with the corroboration of informant hearsay testimony used to establish probable cause for a warrant. This is not the case in the instant appeal. Michigan does not require the prosecution to disclose the name of an informant unless that informant is a material witness.
People v Asta,
Defendant next argues that the prosecutor, by manipulating the notice of alibi statute,
i.e.,
the waiving of the four-day notice requirement, only after defendant had taken the stand, violated the Supreme Court’s rule in
Wardius v Oregon,
We find defendant’s argument is not properly before this Court. Defense counsel failed to argue at trial that the Michigan alibi statute was unconstitutional under
Wardius, supra.
Due to the fact that no request for reciprocal discovery was made in the trial court and since no objections were made to the proceeding in the trial court on the question of the constitutionality of the statute, we find that defendant has not properly preserved the issue for appellate review.
People v Watkins,
Defendant’s next assignment of error is that he was denied a fair trial because his counsel was incompetent. Defendant contends his attorney’s waiver of objection to the identification testimony and failure to object to the hearsay informant testimony by Officer Wolak should entitle him to a new trial. We do not agree.
Beasley v United States, 491 F2d 687 (CA 6, 1974), has announced a new standard to determine whether there has been effective assistance of counsel. Applying Beasley, supra, to this case, we find that defense counsel’s lack of objection to the identification was clearly a trial tactic. By waiving her objections to the photo identification, defense counsel was able to argue to the jury the suggestiveness of that procedure. Defense counsel made a motion for a mistrial upon the disclosure of the informant’s testimony. Although the motion was properly denied, defense counsel could do no more. This contention is not persuasive.
During the course of trial, the prosecutor attempted to impeach the defendant by use of prior felony and misdemeanor convictions. Defendant argues that the recent Supreme Court decision of
People v Renno,
"We do not hesitate in this case to prohibit the further use of municipal ordinance or misdemeanor convictions used by the prosecution solely for impeachment purposes.” Id., p 55. (Emphasis supplied.)
The Supreme Court by using the phrase "further use” was indicating that this decision is not to be applied retroactively. We so hold.
Defendant contends that the trial judge erred in instructing the jury that they should view the alibi defense with caution, since such a defense is easy to prove and hard to disprove. Defendant’s argument is based on the theory that the recent case of
People v McCoy,
Defendant’s remaining assignments of error are without merit.
Affirmed.
Notes
This Court notes that MCLA 768.20 has been amended by Public Acts 1974, No. 63, effective April 1,1974.