*1 PEOPLE v SANFORD PEOPLE v GARDNER 4). (Cаlendar 3, Argued May No. No. 57633. Decided Docket 17, April 1978. Reginald Dwight were convicted L. Gardner Sanford and Evans, J., Detroit, of jury Robert L. Court of Recorder’s being appeal This concerns to unarmed. intent rob with assault prosecutor’s choosing crime to what issues of discretion the evidence, admissibility charge, to of and instructions prosecutor to jury. allow Defendants claim that to case, charge charged in the assault either the crime instant unarmed, of 15 with a maximum sentence with intent to rob unarmed, robbery years imprisonment, attempted with a or years, deprives due of 5 of sentence accused maximum laws, equal protection process and and the of law complain- punishment. subjects cruel and him to unusual testified, objection, to circum- ant officer over complainant’s defendants. stances of given jury objected on the to instructions Defendants witnesses, reliability which not identi- were of identification they requested. court to instruct The trial failed cal the ones orientation, jury, during verdict that the other than their unanimous, requested neither such but the defendants must [1, [7-15] [9] [3] [6] [10-12] [5] [4] [14,15] 29 67 Am Jur Attempt Accused: 76 Am 2] 75 Am Jur 6 Am Jur 6 Am Jur 75 Am Jur 29 Am Jur bility of 6 Am 29 Am 29 Am Jur Jur Am Jur to commit extrajudicial Jur evidence 2d, 2d, 2d, Robbery 2d, Jur 2d, 2d, 2d, 2d, References Assault Assault and Trial § 2d, Trial Evidence Trial 884. 2d, Evidence § 2d, Assault Evidence assault as as to. 71 ALR2d 449. Evidence §§ § 112 et 79§ 576, §§ pretrial for Battery Battery 493, et seq. §§ 854-860. Battery criminal §§ Points seq. 367-373. 373. 497. 372, 4.§ §§ 373. in Heаdnotes §§ 2, offense. 79 ALR2d 3. 10, 108. accused, 597. admissi- Sanford it, objected give and all instruction nor to the failure Ap- acknowledged guilty. jurors their verdict The Court of Holbrook, Jr., Bronson, P.J., peals, D. and V. J. Brennan and E. 21149). (Docket JJ., appeal. Nos. Defendants affirmed *2 Held:
The convictions are affirmed. Williams, Moody, Coleman and Blair Justice with Justices Jr., concurring, wrote: by Attempted robbery may simply committed 1. unarmed be fear; putting person rob assault with intent un- a but requires Therefore an assault with force and violence. armed prosecutor’s are the discretion to the offenses different and charge The Court under either statute is not unconstitutional. erred, however, stating Appeals victim must that the be of put of immediate as an element the in reasonable fear harm may upon A made a crime of assault. criminal assault knowledge though person of the fact at the even he has no attempt simple time. A criminal assault is either commit places battery act another in reasona- a an unlawful which or apprehension receiving battery. ble an immediate though the trial 2. received a fair trial even court Defendants requirement jury not instruct the on the of a unanimous did jury substantially the had been instructed on verdict because actually requirement orientation there was a this in their unanimous verdict. cautionary requestеd in- 3. The defendants had a detailed reliability credibility jury of testi- to the on struction the cautionary
mony identification. The instruction requested by given by judge substantially one the trial was the whole, Taking charge jury a defense counsel. the to the as judge’s by prejudice the failure there was no to the defendants requested. give the instruction exact police complainant Testimony the 4. the the on officer and surrounding complainant’s identification of circumstances the objectionable prior the defendants to their arrest not hearsay. testify of the not as to the truth The officer did complainant’s to the of the defendants but fact identification sur- that the identification was made and the circumstances rounding court to it. It is within the of the trial discretion testimony to the circumstances admit into evidence limited complain- by surrounding an identification of the defendant ant, though danger use of consistent even there is in the statements in relation to issues. identification arranged by not 5. The identification in the instant case was complaining witness who saw the police but initiated day assaulted and called after he was defendants in a store the was police. unfair that the There is no claim biased, defendants’ constitutional denial of the or was a police limited to rights. testimony was of the officer procedure, and the trial circumstances of procedure the identification judge into evidence did not admit Therefore, judge preliminary the trial examination. at the used admitting prior testi- consistent his discretion did not abuse mony the defendants. identification of about concurring, Fitzgerald, Ryan, joined by wrote Justice Justice separately time of trial under the case law at the testimony concerning the actual identification of police officer’s complaining was inadmissible hear- witness defendants repetition say. consisted of a The officer’s description his conduct when assertive witness’s words and goes beyond testimony of identifying the defendants which surrounding an identification which circumstances However, permitted did former case law. under complain- unfairly prejudice these defendants because at trial ing officer were both available witness and the *3 expose any unfairness in the could for cross-examination which identification, any setting, any hesitancy inconsist- in the police complaining ency witness and the of the in the Furthermore, admissible would now be this officer. Michigan if a new trial were Rules of Evidence under the Therefore, of the granted. not warrant reversal error does defendants’ convictions. Levin, concurring, Kavanagh and Justice Chief Justice agreed attempted robbery to assault with intent rob evidence, recently adopted rule of The are distinct offenses. 801(d)(1), prior permits of a witness’s MRE the introduction prior occur- statement of identification where that make that identifica- red at a time and in circumstances probative the instant identification. In tion more than in-court police arrange It occurred the confrontation. case the did not day clear that the victim’s chance the after the offense. It is sugges- was free of the taint identification of the defendants designed circumstances. The rule of evidence was tive witness; identifying testimony by persons permit than the other testify regarding persons may a question other whether circumstances, so, and, raises if under what subject and has been under the Confrontation Clause issues testi- officer’s discussion. Whether of considerable v Sanford mony concerning properly that identification was admitted into error, any,
evidence is not addressed because the
if
was harm-
beyond
less
a reasonable doubt.
judgment
Appeals
of the Court of
is affirmed.
(1975)
101;
App
part.
Opinion of the Court Robbery—Attempt—Assault 1. Indictment and Information — With Intent to Rob. being attempted robbery
Assault with intent to rob unarmed and therefore, offenses; unarmed are different the discretion in a prosecuting attorney charge a defendant under either of two statutеs, being attempted with intent to assault rob unarmed or unarmed, robbery deprive process does not the accused of due laws, equal protection subject of law and the him to punishment, though pre- cruel and unusual even the statutes years imprisonment scribe a maximum sentence of 15 for the (MCL years 750.88, 750.92, former offense and 5 for the latter 28.798). 750.530; 28.283, 28.287, MSA Robbery Attempt—Assault 2. — With Intent Rob —Elements
Crime. Attempted robbery may by simply putting unarmed be committed fear; person but assault with intent to rob unarmed (MCL 750.88, requires an assault with force and violence 28.798). 750.92, 750.530; 28.283, 28.287, MSA 3. Assault —Elements of Crime. include, element, necessarily The crime of assault does not as an requirement put the victim reasonable fear of (MCL 28.276). 750.81; immediate harm MSA 4. Assault —Words and Phrases. simple attempt
A criminal assault is either an to commit a battery places or an unlawful act which another in reasonable (MCL apprehension receiving 750.81; battery an immediate 28.276). MSA *4 Jury 5. Criminal Law —Instructions to —Unanimous Verdict. trial, though A defendant a fair did received even the trial court jury requirement instruct on unanimous of a verdict, jury substantially where the was on the instructed requirement during was in fact a their orientation and there unanimous verdict. 402 Jury Witnesses—Credibility— — 6. Law —Instructions Criminal Identification. prejudice in a trial court’s failure was no to a defendant There jury cautionary give to the on the relia- a detailed instruction testimony concerning bility credibility ex- or given cautionary by actly requested where the instruction whole, substantially judge, was the one taken as a the trial by requested defense counsel. Evidence—Admissibility—Hearsay—Identifica- 7. Criminal Law — tion —Circumstances. Testimony party surround- third limited to the circumstances of a by ing identiñcation of a defendant the com- an out-of-court hearsay may plaining be admitted into witness is not court, evidence, subject to such in the discretion of the trial procedures identiñcation were as whether the considerations biased, rights unfair, of the violation of the constitutional a accused. Evidence—Admissibility—Identification—Cir- 8. Criminal Law — Statement. cumstances —Prior Consistent surrounding to the limited circumstances Admission by complainant a is within an identiñcation of the defendant court, danger though the trial even there is the discretion of to identiñca- use of consistent statements relation tion issues. Evidence—Admissibility—Hearsay—Words 9. Law — Criminal Phrases. statement, by Hearsay at other than one made the declarant is a hearing, prove the truth of the a trial or offered evidence officer, asserted; therefore, testimony police matter of a which that he had the circumstances of an was offered to show seen complainant out-of-court identiñcation of a defendant a identiñcation, hearsаy. prove not to was not the truth Evidence—Admissibility—Identification— 10. Criminal Law — Prior Consistent Statement. Testimony by police present officer who was at an out-of-court complainant, was not defendants which identiñcation of complainant arranged by by the who but initiated day in a store after he was assaulted saw defendants police, properly for admitted in trial and called the was there is no claim assault in the court’s discretion where unfair, biased, the defend- or a denial of identiñcation rights, to the was limited ants’ constitutional *5 v Sanford procedure, the testi- the of identiñcation circumstances preliminary procedure the mony used at of the identiñcation not admitted. was examination Opinion by Concurring Ryan, J.
Fitzgerald, J. Evidence—Admissibility—Hearsay—Identifica- 11. Criminal Law — tion —Circumstances. extrajudicial party concerning an of a third identi- by complaining the witness admissi- of a was ñcation defendant only case law insofar as such ble under former surrounding prove the identiñca- offered to the circumstances independent tion, providing relevance the had circumstances the issues in the case. Evidence—Admissibility—Hearsay—Identifica- 12. Criminal Law — tion. testimony by police hearsay a into evidence of officer Admission concerning complaining identiñcation out-of-court witness’s not error where both of thе defendants was reversible complaining at police testiñed trial and and the officer witness subject were so that were to cross-examination the defendants furthermore, ordering testimony; by unfairly prejudiced not gesture empty new trial would be an where evidence a of if a new the new evidence be admissible under would rules (MRE granted 801[d][1]). trial were by Kavanagh, C.J.,
Concurring Levin, J. 1.
See headnote
Evidence—Admissibility—Hearsay—Identifica-
13. Criminal Law —
tion.
prior
permit
a
the introduction of
The rules of evidence
witness’s
prior
when the
occur-
statement
identiñcation
identiñcation
that make
red at a time and in circumstances
that identiñca-
(MRE
probative
more
than
identiñcation
tion
in-court
801[d][lj).
Evidence—Admissibility—Hearsay—Identifica-
14.
Law —
Criminal
tion.
prior
identifying
Testimony by
witness
out-of-court
his
police
properly
of the defendant to
statement
identiñcation
arrange
police
did
evidence where the
admissible into
day
after
occurred
chance
confrontation which
suggestive circumstances Evidence—Admissibility—Hearsay—Identifica- 15. Criminal Law — tion. persons identifying may testify Whether other than the witness regarding identifying identiñcation witness raises clause; however, error, issues under the confrontation if any, admitting testimony by into evidence officer complaining witness’s identiñcation of the de- *6 beyond fendants was harmless a reasonable doubt where the dispute any defendants did not offer evidence to the identiñca- tion, and the officer’s did not tend to inñuence the (MRE jury’s disputed 801[d][l]). resolution of a issue Kelley, Attorney General, Frank J. A. Robert Derengoski, General, Solicitor Cahalan, William L. Prosecuting Attorney, Reilly Wilson, Edward Re- Training Appeals, Timothy search, & A. Baughman, Prosecuting Attorney, Assistant for people.
Carl Ziemba for defendants. J.
Williams,
Introduction upon This case concerns an attack Mr. Ander- complaining son, witness, three men. The day after the attack Mr. Anderson called the police to inform them that he had seen his attack- police accompanied ers. The then Mr. Anderson to poolroom pointed where he out the defendants. At trial Mr. Anderson and a officer were permitted, objection, testify over to the circum- poolroom stances of the identification. The Court Appeals agree. found no reversible error. We trial, At the conclusion of the defense counsel requested special reliability jury instructions on judge testimony. witness identification The trial v Sanford Opinion op the Court give requested not instructions did but exact counsel, similar ones. Defense gave substantially expected present during not to be the giving who had made an previously objec- instructions if requested given. tion instructions were error. Appeals The Court of found no reversible agree. We failed to judge jury
The trial instruct must be jury their verdict unanimous. requirement during on the of unanimity instructed ju- their orientation. The record reveals that all acknowledged they agreed rors on the verdict. requested Defense counsel neither an instruction objected judge’s on nor to the trial unanimity Appeals it. The Court of found no give failure agree. reversible error. We of Appeals
Before the Court defense counsel due alleged right a violation of defendants’ were process equal protection. Defendants armed, intent to rob not convicted of assault with 750.88; 15-year MCLA MSA 28.283 which carries a sentence, sentenced to 2 to 15 years maximum *7 cqntends counsel at- imprisonment. Defense unarmed, 750.530; tempted MCLA MSA robbery 750.92; 28.798 and MCLA MSA 28.287 is an identi- cal offense with a maximum sentence. five-year vio- alleges rights Therefore he defendants’ were prose- lated to the given because discretion iden- charge cutor to either offense when both are found the statutes Appeals tical. The Court of prohibited different offenses and therefore were agree the statutes are not identi- not identical. We cal, different from the Court of but for reasons Appeals. Affirmed.
I—The Facts were Dwight Reginald Sanford and Lee Gardner 402 Mich оp the Court charged with the com- a one-count information intent to rob offense of assault with the mission of being unarmed, 750.88; 28.283. MSA MCLA complainant, Anderson, testified
The Booker p.m. February 5:45 he 26, 1974 at about on that Drug Store near Owen and Sherman went to the City he in the of Detroit. returned When Oakland unlocking the door someone his to grabbed car and was persons hit him on the side of him. Two They throw him down. tried the tried to and head pocket get his that there was to money and said into person pocket, came and A third in the grabbed dragged alley to an and him and he was money kept saying culprits in the there was the pocket. culprits got they The Then ran. broke nothing.
At identified defendants trial Mr. Anderson the who Sanford as two of men Gardner he one testified had him. Mr. Anderson attacked strug- glasses eye in the false his were broken gle. seen He testified he had defend- also never day, them he had in the but seen ants before drug drug into the store. store he when walked Mr. also testified on examina- Anderson direct having day defendants the tion identified after defendants attack. Mr. saw Anderson drug police. By store and called the in the same police were defendants time arrived poolroom. joined Mr. Anderson at the The poolroom. pointed Mr. then defend- Anderson police. portions ants relevant out follow: attorney]): Okay. C'Q. Morgan [prоsecuting Mr. (By Now, Anderson, day, February you did next Mr. go drug have back to store? occasion *8 drug "A. I back store. went People v Sanford Opinion of the Court ”Mr. Objection. Ziemba This is [defense counsel]: irrelevant, entirely your Honor.
"The Court: Overruled.
"Mr. Thank you. Ziemba: Morgan):
”Q. (By Mr. Would that be in the afternoon some time? store, drug
"A. Yes. I went back to the and I saw drug them come store.
”Q. drug Who came in the store?
"A. Those two here. "Mr. May Ziemba: I continuing have a line of this question? [sic]
"The Court: Yes.
"Mr. Ziemba: Thank you.
”Q. (By Morgan): Mr. You saw Mr. Gardner and Mr. Sanford? right.
"A. That’s
”Q. they anything Did do drug in the store? They got "A. pack cigarettes, think, I and walked out. "Q. next, Okay. you What did do sir? policeman.
"A. I called a
"Q. police Did some officers come? right.
"A. That’s
”Q. you What did do next? "A. When I police, called the they up circled around Oakland, down Owen and and then went in the poolroom. "Q. room, After the went into the billiard what do, you did sir? there,
"A. I went in too.
"Q. What did you do next? They
"A. standing was looking. around there "Q. mean, you Who do they? They looking, "A. police, pointed I him
out and him out because them was the ones who robbed me.
”Q. pointed You Mr. Gardner and Mr. Sanford out? "A. right. That’s *9 402 Opinion the Court they doing poolroom? in the were
"Q. What playing pool. was "A. He Sanford?
r'Q. Mr. Yes, playing and he checkers. "A was people poolroom? there in the ”Q. any Were other Yes, something like that. people, "A. about 15 to 16 Anderson, testify prior hearing you at a "Q. Mr. did in matter? this
’A. I did. [sure] time, you occasion to particular did have
"Q. At that identify the defendants? objection- highly object I to this. This is
"Mr. Ziemba: able. Objection sustained.
"The Court: I be stricken ask that answer "Mr. Ziemba: [sic] disregard [sic], the answer jury and the be instructed Honor, approach the Morgan: may wе "Mr. Your bench? Yes.
"The Court: record.) (Whereupon a was held off discussion Anderson, there any Mr. (By Morgan): Mr. ”Q. the men these are two of who your mind that doubt February you rob on 26? attempted to right. right two there.” That’s That’s the ’A. permit judge Mr. Anderson to trial
The did procedure testify used for the the identification preliminary preliminary At ex- examination. request counsel, amination, at of the defense complainant courtroom excused from the in the audience. the defendants were seated complainant courtroom and then entered the The identify He was asked took the witness stand. him, defend- assaulted and identified the men who in the audience. ants objection, police officer, confirmed com- over
A plainant’s testimony People v Sanford op the Court
made February poolroom. After this parties rested.
At close the trial re- defense counsel quested, writing, special instruction on the reliability witness testimony.
trial judge gave instruction which was substan- tially similar.
The court did not instruct their jury verdict had to be unanimous. Defense counsel neither requested such an objected instruction nor *10 judge’s to the trial failure to it. give The record reveals that jury instructed on the una- nimity requirement during their orientation following manner:
"Again, people 12 or 6 people for to reach a unani- mous you in a thing; decision criminal trial difficult is a opinions have to listen to your of each of fellow jurors.” reveals, The record also jurors
"that all the аcknowledged judge to the trial Sanford, that they agreed on verdict”. v 65 101, (1975). App 106; Mich 237 201 NW2d The jury convicted defendants of assault to with intent rob re- unarmed. Both defendants prison ceived 2 sentences of to 15 years. of Court con- Appeals affirmed defendants’ Sanford,
victions in People 101; 237 App (1975). NW2d
We granted appeal leave to on issues raised in defendants’ four application, discussed convictions, above. We affirm defendants’ but on issue I for reasons different from the of Court Appeals. Mich the Court op Comparison Criminal Statutes Two
II — defined in offense contend The defendants 28.283, intent to assault with 750.88; MSA MCLA offense is identical being rob not armed unarmed, in MCLA defined robbery attempted 750.92; MSA MCLA 750.530; 28.798 and MSA 28.287. discussing defendants’ Appeals
The Court stated: first issue they were the crime next contend "Defendants unarmed, being of, intent rob with
convicted is the same offense assault robbery. attempted unarmed rob intent since assault with They contend that 15-year maximum sen- only a being unarmed carries only a 5- tence, robbery carries attempted unarmed maximum, equal protection to year it is denial prohibiting statutes, penalties, with different have two the theory disagree with defendants’ conduct. We same prohibiting the same are at two aimed statutes App 103. conduct.” 750.88; provides: MSA 28.283 MCLA being unarmed with intent to rob steal "Assault dangerous being armed —Any person, not with *11 force and vio- assault another with weapon, who shall steal, guilty lence, and shall be and with intent rob in the state felony, punishable by imprisonment of a prison added.) years.” (Emphasis than not more 28.798 750.530; provides: MSA MCLA shall, by force "Robbery Any person who unarmed — fear, violence, feloni- putting by assault or and or another, or rob, person of take ously in steal and from which property presence, any money or other his being not larceny, of such robber may subject be guilty weapon, be dangerous shall armed with People v Sanford op the Court imprisonment punishable by prison in the felony, state added.) years.” (Emphasis more than 15 not 750.92; provides: MSA 28.287 MCLA person "Attempt Any who shall to commit crime— law, by prohibited and attempt to commit an offense attempt any the commission do act towards shall such of shall the the follows: offense, perpetration, in the or shall fail such but prevented in the intercepted or execution be same, provision for express by is made law when no punished as attempt, shall be punishment of such attempted to be committed is "2. If the offense so life, prison for by imprisonment in the state punishable more, person a of such years or convicted or for attempt imprisonment punishable guilty felony, by shall be prison years more in the state than year.” county jail in the not more than or 750.88; under MCLA were conviсted Defendants 28.283, greater penalty, the statute with the MSA terms of not less than 2 nor more and sentenced to imprisonment. They allege 15 years than process of due their convictions were violative Fifth protection under laws equal to the Amendment and Fourteenth Amendment 1963, under United States Constitution Const 17, given identical crimes are art because § penalties. statutory different
The assault with intent
to rob unarmed statute
there must
an assault with force
conjunctive;
is
be
unarmed
attempted
robbery
and violence.
statute
the offense can be accom-
disjunctive;
violence,
assault,
or
either
force
plished
by
robbery unarmed
putting
Attempted
in fear.
simply
putting
committed
therefore
may
with
to rob
fear while assault
intent
someone
*12
We affirm result this issue. Assault
Ill — Definition Criminal Although Appeals we affirm the Court of result disagree on the with their defini- above issue we tion of "criminal assault”. Appeals
The Court of
said:
law, however,
"Michigan
defines a criminal
criminal
being
The essential elements of assault with intent
to rob
un-
(1)
(2)
violence,
armed are
and
an assault with force and
an intent to rob
(3)
steal,
being
necessarily
defendant
unarmed.
crime
intent,
requisite
necessarily
requires an assault and the
but not
taking.
(1)
attempted
robbery
of an
unarmed
are
The essential elements
taking
property
person
attempted felonious
from the
of another or
(2)
presence,
by
by putting
force and violence or
assault or
in his
(3)
fear,
being
defendant
unarmed.
being
necessarily
An assault with intent to rob
unarmed
involves
attempt
corporal injury,
present
an
and
or offer to do
with the
intention
words,
present ability
carry
to
out the offer. In other
there must
criminally
be a
assaultive act.
Attempted
robbery
may
may
unarmed
not include a criminal
attempted
robbery may
accomplished by
An
assault.
force and violence or
does not
unarmed
also
by putting
Attempted
Therefore,
robbery
in fear.
unarmed
necessarily require
an assault.
it is obvious that
possess
present ability
carry out
the defendant need not
to
offer.
attaching
policy
Therein lies what we believe to be the
rationale for
being
15-year
a
unarmed
tempted
maximum
to rob
sentence
assault with intent
requiring only
5-year
while
for at-
maximum sentence
robbery.
unarmed
being
necessarily
An
with
involves
assault
intent to rob
unarmed
injury
present ability
carry
an
Hence,
that offer.
offer to do
with the
out
dangerous
potential
always
victims.
vis-á-vis
more
the crime is
require
Attempted
robbery
necessarily
does not
an assаult
unarmed
so,
definition,
present ability
carry
the offer need not
out
circumstances,
Hence,
danger-
that crime is less
exist.
under certain
bodily
possibility
to the victims.
of actual
harm
ous vis-á-vis the
Sanford
Opinion of the Court
*13
intentional, unlawful offer of violence to
any
assault
ability
apparent present
carry
out
with the
another
offer,
in-
creating a
fear of immediate
reasonable
426;
Carlson,
125
361
People
160 Mich
NW
v
jury.
396;
(1910),
Richter,
"An
under
circumstances an offer
carry on the face of its attendant
corporal hurt
attempt
or violence to do a
or
with force
to another.”
People in almost identical (1895), assault defined words: offer, attempt with 'every "An assault involves ” violence, corporal hurt to another.’ to do a
force and these definitions that none of It noted will be "rea- Appeals requirement the Court include case, harm”. earlier immediate One fear of sonable (1880), 521; 5 NW Lilley, in the follow- requirement rejected specifically ing words: might in law? It an assault then constitutes "What *14 upon authorities reconcile all the difficult to somewhat attempt it. Some of the shall not subject, and we this tests, fear, cannot be person assaulted putting the as may upon made evidently an assault be as upon, relied knowledge although had no he person, even
a time. fact at the an inchoate violence to defined to be "An is assault another, present carry- of with the means of person sufficient; Threats are not into effect. ing the intent offered, actually violence proof of there must be if might harm ensue distance as that such a this within the (emphasis 521, 525-526 prevented.” 43 Mich party was not added). assault, the ear- deriving its definition
In indicates, the Court opinion from its quotation lier It cases. Supreme two Court relied on Appeals Appeals an earlier Court acknowledged 356, 357; App 32 Mich case, v People Syakovich, (1971), contrary adopted 642 had 188 NW2d interpretation. then, Supreme warrant, do the two cited
What to reach its Appeals Court of give cases Court Richter, 396; 295 NW v Tinkler decision? People v Sanford Opinion op the Court (1940), Traditionally, "the word is a civil case. concept represented entirely different 'assault’ it did in the law of torts”. in criminal law than (2d ed), p Assault, 114. Perkins on Criminal Law dependence consequence, on a civil law defini- As a support Appeals gives little to the Court tion position. Appeals on, the Court of relied
The other case Carlson, 426; 125 NW 361 (1910), support gives ambiguous to the Court of language Appeals. pertinent from that case follows: definitions of what constitutes "There are numerous two, given and textwriters. We cite an assault courts
which, together, may said to include all neces- taken sary elements: " offer, аttempt with force or any 'An assault is or another, violence, whether from corporal to do a hurt wantonness, with such circumstances as de- malice or note, it, time, coupled an intention to do with at present ability carry such intention into effect.’ Cyc, p 1020. " force, any physical partly 'An unlawful assault motion, put creating apprehension fully a reasonable being.’ Bishop injury of immediate Criminal to a human on (7th ed), 23.” 160 Mich 429. Law § introductory language presenting
While the treatises, two, definitions of the two "We cite together, may taken to include all which the be said *15 susceptible necessary elements” is to the con- Ap- junctive interpretation given by the Court of peals making Bishop in definition a this case along necessary Cyclopedia defi- element with the possible, disjunctive interpretation nition, a is also namely Bishop Cyclopedia or the that either alone. The facts in Carlson definition is sufficient conjunctive or the either do not establish Court of the the record dis- because interpretation disjunctive defi- satisfy either or both closed facts that would nitions. while Carl- significance that
It of some may be case, Michigan subsequent in a has cited son been 120, 123, the re- Doud, 223 Mich People v in reasonable put "that the victim be quirement not mentioned in immediate harm” was fear of mentioned it Apрeals until the Court of case law hand, while, Carlson did case, the other in this on necessary much action is Lilley on how quote on the fact comment any create an assault without assaulted, person a could Lilley had held fact at the knowledge no of the "although he had no fear. time” and hence history Michigan of this consequence
aAs that, Criminal as Perkins on cases and the fact (2d ed), says: 116-117 pp Law tendency many [jurisdictions] in a has been "[T]here ground. liability theory tort as an additional to add the added, simple crimi- theory has been
Where the tort attempt made out from either nal assault commit another immediate 'is places act which battery or an unlawful apprehension receiving an in reasonable ” battery,’ Bishop as an quoting to read Carlson as prefer we definition of assault rather alternate or additional in definition required every than as a element in conclusion assault. We are fortified this qua a sine Bishop fact that said that fear was not (9th ed), Law Bishop non for assault. 2 on Criminal 33, reads as follows: § fear, created Injury 33.1. Fear —Actual without "§ person, doubtless
the mind of the assailed while assault, proper may it be an element circumstances *16 People v Sanford 479 Opinion of the Court always necessary.” (Emphasis and as of course added.) p Burdick, Crime, § 339, 3; See also 2 Law of Slaney, 135, 139; Commonwealth v 345 Mass (1962), says Bishop 919, 922 NE2d quirement which re- that fear be an element has been much criticized and "in this Commonwealth neither apprehension fear, nor terror nor of harm is an ingredient essential assault”. of the common law crime of Appeals conclusion, In we hold that the Court of definition of assault this case is incorrect and specifically adopt we it. overrule We what Perkins (2d ed), p says major- 117, on Criminal Law is the ity namely simple rule, "a criminal assault 'is attempt made out from either an to commit a battery places or an unlawful act which another apprehension receiving reasonable ate clopedia an immedi- battery’ Cy- ”. We also hold that either Bishop
or the definition Carlson is an adequate definition of a form of assault and that both forms are actionable in the criminal law. Verdict
IV — Unanimous appeal Defendants’ second issue on is whether judge jury the failure of the trial that reversal. The Court of to instruct requires their verdict must be unanimous Appeals stated: counsel, appeal, "Defense who is also counsel on requested neither objected such an instruction nor judge’s give the trial failure to it. Under these circum- stances, only prevent miscarriage we would reverse 18; of justice. Fry, App See 222 NW2d (1974); in this case 516.2. Since the record GCR unanimity jury reveals that was instructed on the orientation, during requirement their and that all Mich op the Court they agreed judge trial to the acknowledged
jurors miscarriage justice.” 65 verdict, find no we on the 101, 105-106. App *17 re- not be should that the convictions agree We failure, reasons similar for this but for versed Bur- in the concurrence those stated (1975). 462, 469-470; 236 NW2d den, 395 Mich Burden we examined In the concurrence were sufficient if there to determine situation had been jury that to show present factors need for unanim- to the as instructed substantially unani- verdict, fact, had been that ity to this case. analysis the same apply mous. We of requirement of the advised First, was jury their orientation. during verdict a unanimous follows: informed as were They unani- people to reach a people or 6 "Again, for thing; and a difficult trial is in a criminal mous decision fellow opinions your each of to listen to you have jurors.” a jury should instruct the trial
Although judge must that their verdict case in a criminal circumstances, this unanimous, of the in view their jury to advise the adequate language a unanimous verdict. obligation to reach "all Second, Appeals the Court of noted trial judge to the acknowledged jurors 101, 106. App on the verdict”. they agreed verdict. a unanimous actually There was lead us to conclude It is these factors which no trial, though even received a fair defendants triаl court given jury by to the instruction verdict. of a unanimous requirement on the People v Sanford op the Court V— Identification Instructions jury instructions on identifica- the issue On Appeals ruled: tion Court judge give defendants’ "The failure trial erroneous, instruction was not requested identification judge instruction that give as the did was substan- App requested.” 65 Mich similar to the one tially 106. agree of the Court of with the conclusion
We Appeals. requested charge (page one is the entire Without missing) far the difficult to assess how it is now charge. requested judge deviated from trial Yet, page request two of counsel’s oral defense provide general request us with written his nature of the instruction requested.
he *18 counsel re- trial defense At the close of the quested special on witness identifica- a instruction stating: tion anticipate asking I only "the one would [instruction] instruction the effect that court would an to be by to of a defendant as the identification per- having that complainant who never known admits encounter, opinion criminal son is at best before ap- of fact and that it must and not a statement proached carefully by great weighed very and with care jury.” in writ- an instruction
Defense counsel submitted page ing point reads The second on the mentioned. as follows: credibility each identifica- "You must consider the witness, way any other аs
tion witness the same whether is and consider consider whether he truthful 460 Opinion op the Court capacity opportunity he had the to make a reliable testimony. observation on the matter covered his emphasize proof prosecu- "I that the on the burden every charged, tor extends of the element crime proving beyond this burden specifically includes the a identity of reasonable doubt the the defendant as the perpetrator charged. of the crime with which he stands reasonable, examining If after testimony, you have identification, accuracy you doubt as to the must find the guilty. defendant not Telfaire, App 146; ’’United States v DC US (1972), Barber,
F2d 552 United States v F2d 517 (CA 3, (CA 1971), Edward, United States 439 F2d 150 1971).” submitting request After defense counsel stated: request broadly "The to the effect that as
to identification a witness who had never seen the person alleged identified before the offense was an expression of belief that witness. "I give most respectfully ask the court that in-
struction, court, as jury. submitted to the to the "If give instruction, the court decides not I expressed at would this time voice an objection to the being inadequate.” court’s instruction It is clear that defendants wanted a detailed instruction on the reliability credibility including identification witness testimony, the fact that such testimony is at best an and not opinion statement of fact and it aрproached must be great with weighed care and very carefully by jury.
A review the instruction on witness identifica- given tion the judge trial reveals substantially the same type requested that instruction defense counsel. The trial said: judge v Sanford Court of the identity. do then has to with "The third element Then, proof or not there is question is whether the two these defendants beyond were the reasonable doubt Mr. persons in fact assaulted Booker who defendants, him. The the intent to rob Anderson with Mr. Sanford, alleged to the are be two Mr. Gardner and participated in this offense. persons who is of law that identification charge you "I as a matter and, the expression or the belief of witness often an of [sic] course, obligated to take the you jurors are not complaining the of the witness expression or belief [sic] adopt your it in this case and as own. must, determine whether you "In case in order to this them of them or either of not the defendants each or assaulted Mr. look at Anderson, him, intending you to rob must had, may opportunity they have the [sic] the facts circum- make the other and observation you as to the identification. convinces stances which may testimony of Mr. Booker Ander- "You take it, creditable, adopt And, if it seems reasonable son. about which has been any as other facts Or, testimony as given relates to you mаy take that it case. any facts in this case and other carefully it as to whether or it has been examine proven to the third element [identification].”
Again, charge jury, at to the the end jury trial on witness testi- judge instructed The trial said: mony. judge other, case, gentle- any ladies and "In case as in this give
men, making determination is to will you jurors have the credibility the sole characteristics of the witnesses. You right certain judgment. to consider You have manner witnesses they testify you. which before testimony of one "If in the event there a conflict of
witness, testimony which to that you are not bound You facts the case. seems unreasonable with other testimony of witness without reject the one should not reason. witness accept may You *20 Opinion of the Court withstanding. may disregard You also [not] testi- witness, mony entirely if misrepresenta- of that there is ” tion, [sic], your objection own charge Taking jury as a we can whole find no to the defendants to prejudice due the trial judge’s give failure the exact instruction re- quested.
VI — Prior Identification Defendants contend it was "for error the trial judge permit, objection, over testimony by the complainant a as by officer to the arrests”, circumstances of defendants’ because it was "irrelevant” and "merely gratuitously bol- complainant’s stered in-court by * * * hearsay”. The Court of Appeals stated thаt reviewing after the issue "discussion is without 101, merit”. 65 Mich 106. App whether, We find the question over objec- tion, judge the trial permit should testimony con- cerning extrajudicial by the wit- ness who made the identification by and/or a third party, officer, in this a police instance who wit- nessed the problem identification. The is whether such testimony is and if hearsay so whether there is an exception which would allow one or both witnesses to testify. a split among
There is
jurisdictions
on this
question.2 In
California,
263,
Gilbert v
388 US
272-
3;
fn
87 S
1951;
(1967),
Ct
"There is
the States
449, 7,
460; 13,
Testimony
identifier, p
Testimony
§
ALR2d
§
person, p
of third
482.
v Sanford
Court
identifications,
admissibility
prior extrajudicial
independent
identity,
evidence of
both
the witness
parties present
prior
third
at the
identification. See
prior
We taken the Federal testimony Evidence, Rules which removes the hearsay category. the identifier from the The Fed- 801(d)(1)(C) Rule eral of Evidence states: "Rule 801. Definitions following
"The apply definitions under this article: "(d) hearsay. Statements which are not A statement hearsay not if— is "(1) Prior statement witness. The declarant testi- hearing fies at the trial or subject and is to cross- statement, examination and the state- * * * (C) person
ment one of of a made perceiving after him.” party
We find that of the third surrounding limited to the circumstances the iden- objectionable hearsay tification is not as and is judge admissible at the discretion of the trial subject to such considerations as whether iden- procedures unfair, biased, tification were or a vio- rights. lation of the accused’s constitutional Testimony by A. the Identiñer. usually
Objections type to this have 402 Opinion of the Court or on hearsay either on its character been based impermissible bol- it amounts theory consist- testimony by of the victim’s stering in People concurring opinion In my statement. ent (1972), Poe, 611; 202 NW2d noted: testimony was of such importance highlights psychological strongly "This case consideration deserving the most serious legal problem my reading the record and In and bar. of the bench escape the opinion, one cannot Brother Adam’s [sic] pretrial identifica- at the witnesses emphasis on what or not an matters as whether and did. Such tion said identify the defend- did not did or identifying witness identified another ant; identifying witness whether 'positive’ or 'hesi- was person; the identification whether said; what the tant’; identifying witness what etc., shоw; all are lineup do or do records of the wonder, punishment because And no heavily stressed. beyond finds jury discharge depends on whether identified the witnesses a reasonable doubt 'right’ man. happened and what emphasis on what this
"From appar it is procedures *22 pretrial the said at be influ thought jury the would parties ent that both at the time impressions witness’ by identifying enced logically psycho actually is This the crime. nearest underlining important An consideration logically sound. that, all proposition in this case is my concurrence prior to trial made being equal, identifications things 'in court’ those made reliable than inherently more are ('That’s man’). in-court Wigmore has characterized Wigmore, Evi suggestive.’ 'violently identifications as of Identification by Witness’ dence —Corroboration (1931); 550, see Arrest, 550-551 25 Ill L Rev on Accused Comment, (3d ed), 1130; Wigmore, 4 Evidence § also Objection, Hearsay & the Identiñcation Evidence Prior Wall, (1958); Eye-Witness 332 Rocky Mt L Rev 30 2, 26-27, Cases, fn pp 181 in Criminal Identification However, v (1971, in Gilbert printing). 2d Chapter V People v Sanford 487 Opinion of the Court California, 263; 1951; 388 US L 87 S Ct 18 2dEd 1178 (1967), Supreme the United States Court made testi- mony pretrial procedures identification subject to if per se exclusion the defendant was without counsel. Kirby, Illinois, supra [Kirby 682; 1877; v 92 S US Ct L32 Ed (1972)], 2d 411 per restricted this se exclusion post-'indictment’ situations. This writer believes that per exclusionary se rule should be eliminated en- tirely approрriate special qualification and an of rule of such on evidence the basis of the proce- fairness 611, dures substituted.” 388 Mich 623-625. system The Federal such a rule enact- adopted Evidence, ing Federal Rules Rule 801(d)(1)(C), supra. pronouncement
This Court’s most on the direct subject was made fashion conclusory (1925). Londe, 484; Mich 203 NW There Court said: "It proper for was the witnesses had seen who at robbery testify
men identified the time of the they later defendant as one of them. And it was equally proper for testify the officer to under what circumstances the identification was made. That is as far as the testimony. go giving witnesses were allowed to their objection Counsel’s merit. without It does require not further discussion.” 230 Mich 487. Therefore, interpretation literal of Londe would make the testimony admissible, the declarant if the
extrajudicial was fair. This is consist 801(d)(1)(C) ent with the Federal Rules Evidence our proposed Michigan own Rule Evidence 801(d)(1)(C),3 which is identical to the Federal Rule. 1002. opinion signed After this was written but before it this Court adopted Michigan 801(d)(1) including Rules of Evidence MRE now which reads as follows: "(d) hearsay. hearsay Statements which are A statement is not if— *23 402 Opinion op the Court the tradi case, dealing we not with
In this are police once arranged by the pre-trial line-up, tional a where the situation suspect custody, is in but the identification initiated complaining witness defendants process. Mr. Anderson observed attacked. After ob a after he was day store the defendants, Anderson called the serving the Mr. out pointed arrival upon and their defendants, poolroom. in a then were by who identification was suggestion that There is no unfair, righ defendants’ constitutional or a denial of the biased close to the time Surely, so ts. probative more value crime this identification had later. than one at trial some months "(1) the trial testifies at of witness. The declarant Prior statement hearing subject the state- to cross-examination ment, person of a made the statement is one of identification him; perceiving or”. after 801(d)(1),which is in accord MRE It should be noted our rule 801(d)(1)(C),is consistent with the Federal Rules Evidence * * * prior to admit the "with recent trend '[t]he prior exception as substantive evidence that admits under communication available for cross-examination at a witness who is Jersey are to the same and California codifications trial.’ The New by judicial this result construction. effect and New York reached conflicting authority jurisdic- Although within the federal there was rules, prior adoption the federal number of circuits to the tions had been 801-104. Weinstein, Evidence, 801, moving p in this direction.” ¶ our the rule of our case is inconsistent with MRE We believe basis, 801(d)(1). analysis, on a casе case We further believe prior should be made to determine whether the identification should be near in time and if so how near in time to transaction identified; prior involving person any also whether regardless the time of the critical trial identification transaction and date of its relation to case, testifying should be at the admitted. Weinstein, Evidence, 801, p 801-106. ¶ See 4 may A suspiciously in identification cases 'recent trend’ "be unreliable. recognizes unreliability two-pronged is not due is a the affair. It time the is made—the lack of cross-examination at the statement protects principal danger against is due hearsay rule rather which —but procedures by pre-trial identification is which the elicited”. *24 v Sanford op the Court expressed Londe, and our as the law Under 801(d)(1)(C), Michigan proposed Evidence Rule of extraju- testimony his Mr. Anderson of not hear- the defendants identification of dicial say. special type state- of consistent It is a require- subject the usual is not ment which charge solely of to rebut a it be used ment improper influence or motive or recent fabrication and is admissible. Party. Testimony of Third
B. jurisdictions do of and that other case law Our type present of this for admission a clear case jurisdictions testimony. the admit While most of extrajudicial testimony as to an the identifier of jurisdictions the nоt admit do identification, most extrajudicial party testimony to an of a third except identification, in limited circumstances.5 party testimony objections of the third the testimony generally to the as those the same are hearsay that it or character as identifier: its of amounts to bolstering testi of the identifier’s testimony mony. has usu admitted, such Where (1) testimony ally ing identifying tend of rebuttal limited to been testimony impeach or discredit (2) testimony circum witness surrounding the identification. stances admissibility spoke of such on the This Court testimony Londe, and allowed police under the circumstances officer as to made. was which the identification police although Poe, officer’s In pretrial concerning the *25 However, recalled two of the witnesses showup the photos day on the of having shown been went to the that when she Evans stated and Fannie to see permitted showup, station for the was police she look at the showup. really T didn’t the before defendant I him showup] because saw the [defendant] others [in recognized him.’ When got and I I there before even showup, men used at a defendant Gary Harbin viewed defendant, two were it, 32-year old the for besides 611, 616. 388 Mich 58-year old man.” teenagers and a that: Court concluded This however, proce- case, we have "In this suspi- open to the at least prior to triаl that are dures 611, 619. 388 Mich unfairness.” cion of the identi- suspicion no this case there is In witness complaining by defendants fication of the defendants saw unfair. Mr. Anderson was When police. He called drug store. the de- out arrived, pointed Mr. Anderson police is procedure of identification This type fendants. available. one of the fairest 265; NW2d People Hallaway, v
In permit (1973), impermissible it was we held description officer to relate police Sanford Opinion of the Court given by suspect to him at the scene the crime eyewitness testified trial. The testi- who also at an mony being hearsay. objected to as Since it
was prior no statement and also a consistent admitted, had it was statement been inconsistent In were not deal- that case we held inadmissible. question ing of the with the limited extrajudicial circumstances procedure, given description that was but with the party. by third The difference the witness to a testimony. admissibility of the to the crucial an event he the officer testified to In this case witnessed, of the defendants the identification had complaining by Anderson, He was Mr. witness. testifying truth of the identification not to the that it was made and to the fact statement but surrounding Hearsay it. is defined circumstances declar statement, than one made as a other hearing, testifying trial or offered at the ant while in prove the matter ass the truth of evidence testifying erted.6 Since the officer was alleged prove defendants were the February only assailants, but to show that on event, 1974 he the identification witnessed Anderson, the defendants Mr. his hearsay. was not *26 though objectionable hearsay, such
Even not prior testimony category is still within the danger consistent statements. There is in the use in to identi- consistent statements relation procedures. fication We noted the weakness procedures An- v witness identification (1973). Keep- derson, 155; 389 Mich 205 NW2d ing piling dangers on such mind the inherent testimony testimony, when do see value in such we surrounding limited to the circumstances (1973). 265, 275; People Hallaway, 205 NW2d 402 op the Court of the the discretion event, we find it is within testimony. such to allow or disallow trial judge recog- judge the trial find that In this case we allow or disallow the nized he had the discretion and that he did not officer police of the testimony First, does not the record abuse his discretion. pro- the identification that suggestion any contain 27, 1974 was February on place which took cedure constitutional unfair, of the or a violation biased Second, the record re- of the defendants. rights limited judge the trial veals identi- to the circumstances officer not Third, judge the trial did procedure. fication pro- the identification allow exami- preliminary at the which was used cedure the trial did judge These factors show natiоns. the testi- and therefore not his discretion abuse February as to police officer mony of the admitted. properly was 1974 identification
Conclusion armed, to rob not with intent We find assault attempted robbery 750.88; 28.283 and MCLA MSA MCLA unarmed, 750.530; MSA 28.798 and MCLA identical crimes. As- 750.92; 28.287 are MSA the use requires intent not armed sault with rob robbery unarmed Attempted and violence. of force violence force and committed without may be in fear. simply by putting another in the record find evidence We sufficient trial, fair even that defendants received establish judge trial given by no though instruction verdict, be- of a unanimous requirement on the been jury had in their "orientation” cause ver- for a unanimous necessity instructed on *27 People v Sanford Ryan, by J. jury unani- returned a in fact had and diet mous verdict. judge given the trial instruction find the
We testimony substantially on identification witness requested by find no judge’s defendant. We similar prejudice due to trial to the defendant requested. give instruction the exact failure to complaining testimony of the wit- findWe identifying calling ness about pool day after the in a hall to them defendants crime is not properly hearsay admitted and was testimony expressed law in Londe. under the party police officer, witnessed third who of the only extrajudicial and testified identification procedure, of the identification the circumstances properly of thе within the discretion admitted judge. trial
We affirm. Jr., JJ., concurred Moody, Blair
Coleman J. Williams, with (concurring). in the result I concur J.
Ryan,
agree
with
Justice Williams
reached
disposition
parts
II, III,
IV
found
of the issues
express
separately
opinion.
I
V of his
write
and
my
regarding
understanding
the admissi-
different
prior,
bility
out-of-
related to the
of the
defendants.
court
Prior
Identification
Testimony by
A.
the Identiñer
agree
Ander-
of the witness
I
that the
the de-
his
son
admissible at
hall was
at the billiard
fendants
precedential force
this trial because
time of
402 Ryan,
Opinion by
J.
484;
B. of case, the trial of this admissi- of the At the time testimony bility concern- of Officer Stafford of prior, extrajudicial ing identification of Anderson’s People governed by rule of was the defendants (1972). My Poe, 611; 202 320 NW2d v compels understanding rule in Poe of the testimony that the officer’s conclusion by Ander- of defendants the actual hearsay hall was inadmissible son at billiard time this trial. at the of it error to admit Poe, held that was
In the Court testimony identified that two witnesses who positive earlier, made an at trial had defendant extrajudicial him. Error was also identification of 1 however, passing, consistent that correct and It is in observed required hearsay of application rule would have exclusion of the Kay testimony complaining in and that witness Londe of the hearsay traditionally has been given by Anderson here. Inadmissible purpose extrajudicial which is offered for the as an statement defined of thing People Hallaway, proving said. the truth of the J.). (1973) Brennan, 265; (opinion Both the of T. E. NW2d Kay question in and that of witness here in Anderson rejected precisely and should have been fit that definition Londe since, supra: Hallaway, said in as Justice Brennan hearsay suggested need not that the rule some writers have "While declarant, applied extrajudicial who later statements of a be to the exception witness, recognized has not such an testifies as a this Court hearsay rule.” 389 Mich 275-276. to the added, even, might of identifi- when the statement is one Not it cation. Nevertheless, Court, single conclusory lan- sentence the Londe recogniz- guage, testimony apparently even admitted similar without any analysis, ing citation of decision can hearsay discussion it and without admissibility. authority support the Londe its Thus providing only as one of those cases be characterized extrajudicial support tions without such admissibility of identifica- statements for the hearsay problem any recognition inherent (2d ed), 251, 603; McCormick, p ALR2d testimony. Evidence § 449. v Sanford Opinionby J. Ryan, found the admission sheets police line-up containing notations of what these had witnesses said at the time of the earlier identification. This evidence was found to be inadmissible hearsay because of the witnesses and the could line-up shеets have been offered and received for purpose prove no other than to the wit- nesses had made consistent statements iden- tifying Poe as the man who robbed the store in which were since the they employed, witnesses had impeached regard not been with to their prior identification of Poe.
Distinguishing holding its from that part Londe approved case which admission testi- of a third mony person concerning an extrajudicial the Poe Court victim, robbery *29 said: "Londe restricts the police testimony officer’s to 'what place’
took and under 'what the identifi- circumstances not, here, cation was made’ and of the identification.” 388 Mich the or quality nature 618. This distinction important valid and to an understanding of the of the admissibility view, officer’s in the In testimony instant case. my Justice Williams misapplies the distinction.
The testimony person of a third to an extrajudi- cial identification is admissible under the author- of Poe insofar as ity only such is offered testimony to prove surrounding the facts and circumstances identification, providing such facts and circum- independent stances had relevance to the in issues the case. Such facts and tend might circumstances to show extrajudicial whether place took in a setting, fair and unbiased whether lighting at the time of the identification was poor, whether normally identifier who weаrs Opinion by Ryan, J. wearing
glasses at the time them line-up of a identification, case whether line-up persons were of a similar other stature, age weight, race as identified party, and similar matters.
However, Stafford’s testi the essence of Officer significantly mony from case differs in the instant description The circumstances.2 of such facts and officer’s repetition words of Mr. Anderson’s of a
consisted description when conduct of his assertive and a objectionable portions are found in of the officer’s prosecutor officer: following colloquy and the between in, Morgan): came what ”Q. (By Mr. Booker Anderson Mr. After happened next? pool pointed out a into the hall and "A. Mr. Anderson came gentleman, saying, ’That is one of them.’ next, ”Q. happened after that? What My partner pointed defendants. to one of the ’’A.Mr. Anderson up him to come to the door. him and asked walked behind happened "Q. next? What placed custody. "A. He was happened "Q. after that? What gentleman, pointed we the other when "A. then out Mr. Anderson ’ said, inside. 'The other one is outside. He were "Q. happened next? Then what got went and that defendant. "A. We also "Q. placed arrest also? And him under did, "A. We "Q. sir. you Stafford, persons you either of those two who do see Officer morning? arrested at the billiard hall in court this do, I sir. "A. wearing. they "Q. yоu point what are Would to them and indicate wearing gentleman pointed "A. out to us is the The Srst one green black and trousers. record, Reginald Gardner. Indicating Morgan: Mr. for the "Mr. *30 pool sitting hall is the table inside the "A. And down at the checker gentleman green pullover sweater. in the record, Indicating Dwight Morgan: Sanford. for the Mr. "Mr. "Q. (By Morgan): say checker table? You he was seated at the Mr. playing pool, Mr. Sanford was and "A. Yes. Mr. Gardner added.) pp Transcript, (Emphasis 78-79. playing Trial checkers.” line-up contained the inadmissible in Poe sheets found to be trench "That’s him with the the witnesses’ statements: notations of 611, him, 617. that’s him”. 388 Mich coat on” and "That’s v Sanford by J. Ryan, identifying such, and, went be- as the defendants range yond of and circum- the facts the limited setting. The admission of the identification stances purpose testimony only of could have this of bolstering fortifying and in-court and Anderson’s as his of the defendants out-of-court damag- assailants, ingly been of which had the truth challenged on counsel cross-exam- defense purpose, Serving testi- other no valid ination. mony hearsay under the author- was inadmissible ity of Poe. adoption by the of
Nonetheless, indicated as 801(d)(1), persuaded that this Court is now MRE testimony Poe, kind inadmissible in found kind described footnote should and certain limited circumstances. admitted under Recognizing testimony has that including peculiar strengths weaknеsses, those supra, my Poe, Brother discussed Williams Court subscribed to the view of most has evidence, the law as well as commentators on of Congress Supreme States United special Court, rule for that should be carved out admissibility extrajudicial of of statements 801(d)(1), adopting In MRE identification. acknowledges, implicitly addition, that Court hearsay effect of the character cumulative person third out-of-court given by identification, the identi- as well that inherently prejudicial himself, it not so fier necessarily new must be excluded in all cases. Our 801(d)(1)(C), counterpart, rule, like its FRE Federal long allows the introduction such so subject to and is as the identifier testifies at trial the statement cross-examination possible thought preju- identification. It is impact the cumulative effect of such dicial *31 C.J., Opinion by Kavanagh, Levin, J. testimony mitigated by opportunity should be for cross-examination of the declarant which is made mony. condition for the admission of the testi- In testify us, the case before Anderson did at subject trial and was to cross-examination concern ing addition, identification. In the officer subject to cross-examination his testimony.3 Consequently, op defendants had the portunity fully explore only the truth of the in-court identifications, and out-of-court but also the facts and circumstances of identification, expose any setting, and could unfairness any hesitancy any in the identification and incon sistency testimony in the of these two witnesses. I conclude therefore that police officer, while inadmissible at the time this unfairly prejudice tried, case was did not defend- ants and therefore does not warrant reversal. In addition, because such would now be Michigan admissible under the new Rules of Evi- granted, ordering dence if a new trial were one gesture. empty would be an I therefore vote to affirm. J.,
Fitzgerald, J. Ryan, concurred with (concurring). Kavanagh, C.J., J. Levin, We concur in the affirmance of the convictions.
I attempted Assault with intent to rob and rob- bery are distinct offenses. Assault of the intended greater victim is an element of the offense. recognized extrajudicial It is the truth of Anderson’s identifi- probed cation of the defendants as his attackers cannot be and tested merely repeats the cross-examination of one who the statements of are, course, identification. There nation. other values in such cross-exami- People v Sanford Kavanagh, C.J., Levin, Opinion by J. (attempted robbery) lesser offense can be commit- by person having requisite who, ted felonious beyond prepara- intent, commits an tion; the overt act can consist of conduct which act overt mere stops short of an assault.
II 801(d)(1) adoption This court’s of MRE resolves question identifying may the repeat whether an witness prior
at trial his statement of identification. permits The rule the introduction of such state- prior ments where the identification occurred at a time and in circumstances that make that identifi- probative cation more than in-court identification. require The new rule does not a trial court to admit evidence of an earlier identification without regard to whether such evidence is within the policy adoption which led to the of the rule. If the police arrange the confrontation between the vic- defendant, tim and the or if it occurs at a time closer to the trial than to the commission of the probative prior offense, the value identifica- tion evidence would be diminished and the trial might court refuse to admit such evidence. police arrange
In this case the did not by day confrontation. It occurred chance the after It the offense. is clear that the victim’s identifica- tion of the defendants was free of taint of suggestive circumstances. arranged
We also note that if the had circumstances which the identification was admissibility identifying made the witness’s subject would be to the decisions of this Supreme Court and of the United Court States procedures. identification 801(d)(1) designed permit MRE was not testi- mony by persons identifying wit- other than the 402 460
500 Kavanаgh, C.J., Levin, by Opinipn J. persons may question other whether The ness.1 testify regarding and, so, if a issues under the under what circumstances raises subject of has been the Clause and Confrontation considerable discussion.2 question do not address because
We admitting error the officer’s beyond doubt. victim’s harmless reasonable disputed was not of the defendants any them; the officer’s offered evidence might testimony, tend to case which another weight identification, give did added out-of-court jury’s resolution influence the tend to disputed issue.
evidence ALR2d 449. Evidence, Criminology cial Criminal Trials under 1Comment, Comment, Identification, Evidence, Wayne L ¶ 801(d)(1)(C)[01], 240, The Use extrajudicial J Criminal 250, Federal 8 UCLA Rev fn of Prior Identiñcation Evidence See Rules of L L (1975). also, Rev pretrial & Criminology, supra; Case Evidence, 66 See *33 (1961); identiñcation of 651-652 Note, also Anno: Robinson, Evidence: (1977). J Criminal Admissibility in Criminal accused, Weinstein, Extrajudi Civil L & arid notes and handwritten hearsay, we held inadmissible identification were acknowledged Londe, and said: the rule _ 449, 13, person. Testimony third 71 ALR2d § 402 Mich Opinion of the Court testimony to 'what police officer’s "Londe restricts the the identifi- 'what circumstances place’ and under took cation of the identification.” here, not, quality nature or made’ 611, 618. pretrial Poe, indicated In the facts police, arranged procedures, This Court said: unfair. arguably were mug number of shown a "The witnesses were again next holdup and night shots the groups. This photo was in both morning. Defendant’s proper within standard would be procedures.