People v. Baker , 114 Mich. App. 524 ( 1982 )

114 Mich. App. 524 (1982) 319 N.W.2d 597

PEOPLE
v.
BAKER

Docket Nos. 45987, 49885.

Michigan Court of Appeals.

Decided April 5, 1982.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William F. Delhey, Prosecuting Attorney, and David A. King, Assistant Prosecuting Attorney, for the people.

Wm. Douglas Winters, for defendant on appeal.

Before: V.J. BRENNAN, P.J., and ALLEN and T.C. MEGARGLE,^[*] JJ.

V.J. BRENNAN, P.J.

On April 23, 1979, defendant was convicted by a jury of third-degree criminal sexual conduct, MCL 750.520d(1)(b); MSA 28.788(4)(1)(b), for an assault on Catherine Bauer in Ann Arbor on April 11, 1978. He was sentenced to a prison term of from 10 to 15 years. On October 2, 1979, defendant was convicted by another jury as a fourth-time felony offender pursuant to MCL 769.12; MSA 28.1084, and MCL 769.13; MSA 18.1085. Subsequently, defendant's sentence for third-degree criminal sexual conduct was vacated and he was sentenced to imprisonment for 60 to 90 years as a fourth-time felony offender. Defendant appeals both convictions as of right.

Defendant was involved in several sexual assaults on hotel maids in 1978, for which he was convicted. In the instant case, he was convicted of sexually assaulting Catherine Bauer in Ann Arbor on April 11, 1978. Prior to this conviction, he was convicted of first-degree criminal sexual conduct for an assault on Cynthia McKinley in Howell on June 24, 1978; see People v Baker #2, 103 Mich. App. 704; 304 NW2d 262 (1981). He was also convicted of first-degree criminal sexual conduct and second-degree criminal sexual conduct for assaults on Diane Lachowski in Troy; see People v Baker #1, 103 Mich. App. 255; 303 NW2d 14 (1981). In addition, he was convicted of first-degree criminal sexual conduct for an assault on Karen Wolfe in Ann Arbor on August 30, 1978; appeal pending, Court of Appeals docket no. 46129.

Defendant first claims that he was denied due process by the procedures employed in Cynthia McKinley's identification of him. Ms. McKinley was a witness who testified regarding similar acts of defendant and participated in a photographic showup and two lineups. The trial court conducted a Wade hearing^[1] and found that the showup and lineups were not improper or suggestive.

An appellate court reviews a lower court's determination following a Wade hearing by reviewing the totality of the circumstances surrounding the pretrial identification and determining whether those procedures were so impermissibly suggestive as to give rise to the substantial likelihood of misidentification. People v Dean, 110 Mich. App. 751; 313 NW2d 100 (1981).

We find no error on the part of the trial court. The photographic showup was not suggestive even though the police asked Ms. McKinley if her assailant had green eyes. The photographs were all black and white and there was no way to discern eye color. Furthermore, several months prior to the photographic showup, Ms. McKinley told the police that her assailant had "weird" eyes.

Also, we find that the procedures employed in the lineups were not improper or suggestive. Although Ms. McKinley had difficulty identifying the defendant at the first lineup, this was attributable to defendant's attempt to alter his appearance by changing his hair style from an Afro to pigtails and by shaving off his mustache, goatee and eyebrows. At the second lineup, Ms. McKinley immediately identified the defendant from a group of men selected by defense counsel. Consequently, we find that no error occurred.

Defendant's second claim of error is that the procedures employed in Catherine Bauer's identification of him denied him due process because she based her identification on defendant's light skin color. The trial court found that there were three light-skinned black people in the lineup, and, therefore, defendant was not prejudiced. Also, Ms. Bauer testified that she saw the defendant's face for about three minutes and had a good look at him during the assault. There was no evidence or testimony presented that she based her identification strictly on skin color or that the procedures employed were suggestive or improper. Thus, we find no error on the part of the trial court.

Next, defendants claims that the trial court erred in admitting evidence of similar acts of the defendant.

Before evidence of similar acts can be admitted, (1) there must be substantial evidence that the defendant committed the other acts, (2) the evidence must be probative of one of the purposes specified in MRE 404(b), and (3) that purpose must be "in issue" in the case. People v Major, 407 Mich. 394, 400; 285 NW2d 660 (1979), People v Wagner, 104 Mich. App. 169, 178; 304 NW2d 517 (1981). Even if the evidence is otherwise admissible, the trial court must still determine if the probative value of the evidence is substantially outweighed by its prejudicial effect. People v Oliphant, 399 Mich. 472, 489-490; 250 NW2d 443 (1976).

Ms. McKinley and the complainant, Ms. Bauer, testified regarding the assaults on them. After reviewing their testimony, we are convinced that there were distinguishing, peculiar and special characteristics which tended to establish that the defendant committed both sexual assaults. See People v Baker # 2, supra. Further, the defendant's identity was "in issue" so the evidence was probative of that purpose. Identity may be established by evidence of similar acts, particularly where the defense is alibi. People v Kelly, 386 Mich. 330; 192 NW2d 494 (1971), People v Oliphant, supra. Moreover, the probative value of the evidence outweighed its prejudicial effect. There was no error in admitting the evidence.

Also, defendant claims that the trial court erred in admitting into evidence the results of serological tests. There was evidence presented at the trial that the person who assaulted Catherine Bauer was a blood type B secretor and that defendant was a blood type B secretor. The defendant did not object to the testimony. Thus, this issue is not properly before this Court absent a showing of manifest injustice. People v Sommerville, 100 Mich. App. 470, 489; 299 NW2d 387 (1980).

Several panels of this Court have split on the admissibility of serological evidence used to include a defendant in a class of possible assailants. People v Sturdivant, 91 Mich. App. 128; 283 NW2d 669 (1979), People v Spencer, 93 Mich. App. 605; 286 NW2d 879 (1979), People v Horton, 99 Mich. App. 40; 297 NW2d 857 (1980), People v Sommerville, supra, People v White, 102 Mich. App. 156; 301 NW2d 837 (1980), People v Allen, 104 Mich. App. 48; 304 NW2d 483 (1981), People v Collier, 105 Mich. App. 46; 306 NW2d 387 (1981), People v Young, 106 Mich. App. 323; 308 NW2d 194 (1981), People v Camon, 110 Mich. App. 474; 313 NW2d 322 (1981). In People v Sturdivant, supra, this Court found that the admission of blood-type evidence for the purpose of including the defendant in a class of possible perpetrators of the crime is error. Without discussing the admissibility of the evidence, we find that there was no manifest injustice to the defendant. In People v White, supra, the Court found that the rule announced in Sturdivant was not retroactive. Since the trial in White predated the decision in Sturdivant, and prior to that time implicit approval had been given to blood-type testimony, the Court determined that there was no error in the admission of the evidence. As in White, the trial in this case predated Sturdivant. Therefore, we find no error. Also, we note that in cases where error has been found, the error has been harmless where there is a positive identification of the defendant, coupled with evidence of the complainant's opportunity to observe the defendant. People v Sturdivant, supra. People v Sommerville, supra. Such being the case here, any error would be harmless.

Finally, defendant claims that the prosecutor, in violation of the rule announced in People v Fountain, 407 Mich. 96; 282 NW2d 168 (1979), filed a supplemental information on April 25, 1979, charging the defendant as a habitual offender five days after his conviction for third-degree criminal sexual conduct was obtained when the prosecutor knew of the defendant's felony record prior to his conviction. Defendant was convicted as a habitual offender on October 2, 1979. Defendant contends that his habitual offender conviction must be reversed and his enhanced sentence must be vacated.

In People v Young, 410 Mich. 363, 367; 301 NW2d 803 (1981), the Court found:

"We conclude that People v Fountain is applicable to cases pending on appeal on August 28, 1979, the date of decision in People v Fountain, provided the issue was raised during the pendency of the appeal; and in cases, the original trial or guilty plea hearing of which concluded 20 days after the date of decision in People v Fountain."

Here, the defendant was convicted of third-degree criminal sexual conduct on April 20, 1979. At the trial on the habitual offender charge, the testimony established that when the defendant was arrested in October, 1978, the prosecutor was aware that defendant had numerous prior convictions. The language in Young, supra, says that the Fountain rule is applicable if the original trial or guilty plea (conviction of third-degree criminal sexual conduct) occurred within 20 days of the Fountain decision. That conviction was on April 20, 1979. Fountain does not apply.

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] United States v Wade, 388 U.S. 218; 87 S. Ct. 1926; 18 L. Ed. 2d 1149 (1967).