People v. Whalen , 65 Mich. App. 687 ( 1975 )

65 Mich. App. 687 (1975) 238 N.W.2d 376

PEOPLE
v.
WHALEN

Docket No. 20918.

Michigan Court of Appeals.

Decided November 24, 1975.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Harvey A. Koselka, Prosecuting Attorney, for the people.

Burdick & Fink (by N.C. Deday LaRene), for defendant.

Before: QUINN, P.J., and R.B. BURNS and D.E. HOLBROOK, JR., JJ.

Leave to appeal denied, 395 Mich 827.

QUINN, P.J.

Defendant's second trial^[1] for breaking and entering, MCLA 750.110; MSA 28.305, and larceny in a building, MCLA 750.360; MSA 28.592, resulted in his second jury conviction of both offenses. He was sentenced and he again appeals.

The only facts of the crime pertinent to our decision are that defendant was in the car which contained fruits of the crime when the car was stopped at a roadblock soon after the burglary and the larceny. Other facts relating to the issues raised on appeal will be found in the discussion of those issues.

1. Fair trial denied by admission of hearsay testimony. This claim relates to testimony by Officer McBride concerning the license number of an automobile. Assuming, but without holding, this testimony to be hearsay, its admission was harmless error; it did not result in a miscarriage of justice, MCLA 769.26; MSA 28.1096, People v Roberson, 55 Mich App 413; 222 NW2d 761 (1974).

2. Reversible error occurred when witness Stoneback was permitted to testify and when witnesses Stoneback and Pollard were permitted to identify defendant in court.

Defendant claims that because the prosecuting attorney had stipulated prior to the retrial that witnesses who had not testified at the first trial would not be called at the second trial, Stoneback, who had not testified at the first trial, should not have been permitted to testify. Defendant further contends that because witness Pollard talked with witness Stoneback prior to the latter testifying, contrary to the express order of the trial judge, Stoneback should not have been permitted to testify.

The civil case authority relied on by defendant in support of his contention that the stipulation by the prosecuting attorney should have been enforced is not persuasive in this criminal case. The interest of the public in the just result of a criminal prosecution precludes the binding effect of such a stipulation. Furthermore, defendant was offered an adjournment to meet this evidence and it was declined. Still further, no prejudice to defendant has been demonstrated.

While it was improper for Pollard to discuss the case with Stoneback prior to the latter testifying, with or without an order from the trial court, the admission of Stoneback's testimony was discretionary. The record does not disclose an abuse of that discretion.

The trial court found that the contested in-court identification, tainted by improper pretrial identification, was independent of that taint. Proof to support that finding must be "clear and convincing". We have reviewed the record and we are unable to say that the trial court's finding was clearly erroneous, People v Manuel Johnson, 58 Mich App 347; 227 NW2d 337 (1975).

3. Fair trial denied because the trial court permitted improper redirect examination by the prosecuting attorney.

The door which led to this redirect examination was opened by defendant on cross-examination. We find no error.

4. The trial court's instruction on alibi was reversibly erroneous.

We do not read the alibi instruction as offending the rule of People v McCoy, 392 Mich 231; 220 NW2d 456 (1974). "Easy to prove and difficult to disprove" was qualified by "sometimes". If this language does offend McCoy, that case is inapplicable to a case tried prior to publication of that opinion.

Affirmed. This crime occurred March 20, 1969. Over 6-1/2 years later and after two trials resulting in conviction, both of which have been affirmed by this Court, defendant is still free. Enough is enough. Defendant's bond is cancelled and he shall commence serving his sentence forthwith.

NOTES

[1] For first trial see People v Whalen (Docket No. 10764, decided May 31, 1972 [unreported]), reversed, 390 Mich 672; 213 NW2d 116 (1973).