People v. King

107 Mich. App. 208 (1981) 309 N.W.2d 207

PEOPLE
v.
KING.

Docket Nos. 49087, 49088.

Michigan Court of Appeals.

Decided June 16, 1981.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Michael F. Bakaian, Assistant Prosecuting Attorney, for the people.

Chari Grove, Assistant State Appellate Defender, for defendant on appeal.

Before: BASHARA, P.J., and N.J. KAUFMAN and J.L. BANKS,^[*] JJ.

N.J. KAUFMAN, J.

Defendant appeals his convictions from two separate jury trials. In the first, docket no. 49087, defendant was convicted of armed robbery, MCL 750.529; MSA 28.797, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). In the second case, docket no. 49088, defendant was once again convicted of armed robbery, MCL 750.529; MSA 28.797, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). In each case, defendant was sentenced to from 3 to 25 years on the robbery conviction and to two years on the felony-firearm conviction, the sentences to run concurrently. In case no. 49087, defendant was tried for an armed robbery committed on July 12, 1979. In case no. 49088, defendant was charged, with codefendant Dion Smith, with committing an armed robbery on July 15, 1979.

Defendant first contends that his convictions in case no. 49088 must be reversed due to an unduly suggestive lineup identification. We disagree.

Appellate courts in this jurisdiction have previously held that the failure to object to testimony concerning an allegedly suggestive pretrial identification precludes consideration of this issue on appeal. People v Moss, 397 Mich. 69; 243 NW2d 254 (1976), People v Coles, 79 Mich. App. 255; 261 NW2d 280 (1977). A review of the record indicates that defendant's counsel failed to move in the trial court to exclude evidence of the allegedly improper pretrial identification. Rather, defense counsel tactically used the complainant's arguably tenuous lineup identification in an attempt to discredit his more positive in-court identification.

This Court is loathe to substitute its judgment for that of trial counsel in matters of trial strategy. People v Penn, 70 Mich. App. 638, 648; 247 NW2d 575 (1976). Therefore, we conclude that the admission of evidence of the lineup identification in case no. 49088 did not constitute reversible error.

Defendant next contends that his convictions in case no. 49088 must be reversed due to the erroneous admission of similar-acts testimony. Again, we do not agree.

In defendant's trial in case no. 49088, the complainant in case no. 49087 testified as to the prior armed robbery perpetrated by the defendant. As a general rule, evidence of similar, but unrelated, criminal activity is not admissible to show that a criminal defendant acted in conformity with an alleged bad character. People v Oliphant, 399 Mich. 472; 250 NW2d 443 (1976), People v DerMartzex, 390 Mich. 410; 213 NW2d 97 (1973). It has been said that the purpose behind the rule is that the likelihood of prejudice from the admission of this sort of evidence outweighs any probative value the evidence may have. See People v Flynn, 93 Mich. App. 713; 287 NW2d 329 (1979), lv den 409 Mich. 852 (1980). However, exceptions to this general rule are found in a statute, MCL 768.27; MSA 28.1050, and in the Michigan Rules of Evidence, MRE 404(b). In the instant case, we conclude that evidence concerning the prior, similar robbery was properly admitted pursuant to MCL 768.27; MSA 28.1050 and MRE 404(b).

The primary defense asserted by defendant was misidentification. As such, the prior, similar act was probative of one of the purposes delineated in the statute and rule. See People v Gilbert, 101 Mich. App. 459; 300 NW2d 604 (1980). Additionally, there was substantial evidence to show that defendant committed the bad act. Complainant in case no. 49087 made a positive identification, stating that defendant was the man who had committed the armed robbery in question. Furthermore, there were several distinguishing, peculiar or special characteristics which made the prior robbery similar to the charged crime. Both were committed in the same Ford Motor Company parking lot and were committed at approximately the same time of day. Both robberies were perpetrated by two men with sawed-off shotguns. In short, the commission of the prior robbery bore defendant's "signature" and was probative of the defendant's identity when his identity was in issue, and there was no indication that the probative value of the similar-acts testimony was outweighed by its prejudicial effect. See People v Major, 407 Mich. 394; 285 NW2d 660 (1979). As such, testimony concerning the prior robbery was properly admitted, and defendant's conviction in case no. 49088 is also affirmed.

Defendant's final allegation of error, relating to case no. 49087, is that error requiring reversal occurred when the police and the prosecutor made reference to a series of prior robberies in the same area as that where robberies were allegedly committed by defendant. None of these references were objected to during trial. Because we perceive no resulting, manifest injustice, we decline to consider the matter on appeal. People v Farnsley, 94 Mich. App. 34, 35; 287 NW2d 361 (1979).

Affirmed.

NOTES

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