People v. Khabar

126 Mich. App. 138 (1983) 337 N.W.2d 9

PEOPLE
v.
KHABAR

Docket No. 62699.

Michigan Court of Appeals.

Decided April 26, 1983.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Deputy Chief, Civil and Appeals, and Nancy R. Alberts, Assistant Prosecuting Attorney, for the people.

George Stone, for defendant on appeal.

Before: D.F. WALSH, P.J., and BEASLEY and T.R. THOMAS,^[*] JJ.

PER CURIAM.

Defendant, Ali Khabar, was convicted of armed robbery, MCL 750.529; MSA 28.797, and was sentenced to a prison term of 10 to 30 years.

Defendant first argues on appeal that the trial court erred in denying his motion to suppress impeachment evidence of his prior conviction of assault with intent to commit armed robbery. The court recognized that the determination of the admissibility of the evidence was a matter addressed to its sound discretion. People v Jackson, 391 Mich. 323; 217 NW2d 22 (1974). The court also articulated on the record the factors considered in making its determination. MRE 609(a)(2), as amended. 408 Mich. cxv (1980). We have carefully reviewed the court's exercise of its discretion and find no abuse. The court recognized that some prejudice would inure to defendant by reason of the admission of the evidence, but noted both the crucial importance that credibility would play in the case and the theft nature of the prior offense. The court concluded that the probative value of the evidence would outweigh its prejudicial effect. Defendant's suggestion that the similarity between the prior offense and the charged offense mandated exclusion of the evidence is without merit. Similarity is but one of the factors relevant to the determination of the admissibility of such evidence. People v Woods, 416 Mich. 581, 605; 331 NW2d 707 (1982).

Defendant next claims error in the admission of alibi rebuttal evidence following the prosecutor's failure to file the statutorily prescribed notice of rebuttal. MCL 768.20(2); MSA 28.1043(2). He complains of the admission of this evidence to contradict the testimony of alibi witness Mosley. By failing to object to the rebuttal testimony on this ground, and by failing to object to the prosecutor's failure to file a notice of alibi rebuttal witnesses, defendant waived appellate review of this issue. People v Hence, 110 Mich. App. 154, 172-174; 312 NW2d 191 (1981). In any event, the rebuttal testimony was offered to impeach defendant's alibi witness, not to contradict the actual alibi testimony given; admission of the testimony was, therefore, not prohibited by MCL 768.20(2); MSA 28.1043(2). People v Haisha, 111 Mich. App. 165; 314 NW2d 465 (1981); People v Gillman, 66 Mich. App. 419; 239 NW2d 396 (1976).

Defendant also challenges the prosecutor's closing comments on defendant's failure to produce the testimony of an alibi witness listed in his notice of alibi. The remarks — which merely constituted comment on the weakness of defendant's case — were not impermissible. People v Shannon, 88 Mich. App. 138, 145; 276 NW2d 546 (1979).

Next, defendant argues that the trial court erred "in not holding that the prosecutor had failed to produce a res gestae witness to the prejudice of defendant". The possible existence of this alleged res gestae witness was revealed to the defense during the preliminary examination testimony of the complainant. Defense counsel questioned the complainant about the alleged witness during trial. He also questioned one police officer about the complainant's testimony, but waived production of another police officer who could conceivably have shed light on the issue of the missing witness. In closing argument, defense counsel focused on the possibility of the complainant's misidentification of her assailant and argued that the alleged missing witness was a res gestae witness who should have been produced. Defense counsel argued that the missing witness "could possibly give a description of the people that assaulted that girl".

Defendant never asked the trial court, by mid-trial motion or motion for new trial, for a determination of the status of the alleged missing witness or of the prosecutor's duty to produce him. The defense was aware of the possible existence of this person several months before trial; the record strongly suggests deliberate defense strategy in failing to file a timely motion for a Robinson/Pearson hearing. People v Robinson, 390 Mich. 629; 213 NW2d 106 (1973); People v Pearson, 404 Mich. 698; 273 NW2d 856 (1979). Under the circumstances, we are persuaded that defendant waived any right he may have had to the alleged witness's presence at trial. People v Ferguson, 94 Mich. App. 137; 288 NW2d 587 (1979), lv den 409 Mich. 949 (1980); People v Robideau, 94 Mich. App. 663; 289 NW2d 846 (1980), lv gtd 412 Mich. 871 (1981). We find that no manifest injustice will result from our refusal to consider the substance of defendant's claim or to order the requested remand. People v Buschard, 109 Mich. App. 306, 312; 311 NW2d 759 (1981).

Finally, defendant challenges the sufficiency of the evidence supporting his conviction. In this regard, he challenges the admission of testimony by the arresting officer concerning the complainant's identification of defendant as her assailant. We are persuaded that there was no error in the admission of this testimony. MRE 801(d)(1); People v Sanford, 402 Mich. 460, 497; 265 NW2d 1 (1978) (opinion of Justice RYAN). In any event, there was no objection to the admission of the testimony. The issue has, therefore, not been preserved for appellate review. People v Mock, 108 Mich. App. 384, 387; 310 NW2d 390 (1981). Examination of the record discloses sufficient evidence to support the jury verdict.

Affirmed.

NOTES

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