People v. Lodge

Per Curiam.

Following a jury trial, defendant was convicted of armed robbery, MCL 750.529; MSA 28.797. On the following day, he pled guilty to being an habitual offender, fourth offense, MCL 769.12; MSA 28.1084. He was sentenced to from ten to fifteen years in prison. However, this sentence was later vacated and the judge imposed a prison term of from eighteen to fifty years. Defendant appeals as of right.

Defendant’s conviction arose out of an armed robbery at the Ypsilanti home of Byron Miller on June 18, 1984. A "be-on-the-lookout” bulletin was subsequently transmitted over police radio describing the vehicle connected with the robbery. The dispatch described the vehicle, a van, gave the license plate number, and stated that it was wanted in connection with an armed robbery and that the occupants might be armed and dangerous.

At approximately 2:00 a.m. on June 30, 1984, two East Detroit police officers spotted a vehicle matching the bulletin. They stopped the van and searched its occupants. Defendant was a passenger in the van. While patting down defendant, the officer found four live .410 gauge shotgun shells in his pocket. The van was towed to the police station where a .410 gauge shotgun was discovered in the vehicle. Defendant was arrested for possession of an "illegal firearm.” However, the arresting officer testified that he measured the shotgun and found it to be eighteen inches — a legal length. This charge was later dismissed at the preliminary examination.

Prior to the preliminary examination, however, defendant was taken to the Washtenaw County Sheriffs Department to participate in a line-up. Byron Miller, the victim of the armed robbery, identified defendant as one of his assailants and defendant was subsequently charged and bound over for armed robbery.

Before trial, defendant moved to suppress the evidence of the line-up identification and the shotgun as the fruit of an illegal arrest. The court found that, while it was a "close question,” defendant’s arrest was legal and therefore the line-up identification and shotgun were admissible. This Court will not reverse the trial court’s ruling at a suppression hearing unless it is clearly erroneous. People v Burrell, 417 Mich 439, 448; 339 NW2d 403 (1983).

An arrest without a warrant is permissible if the arresting officer has reasonable cause to believe that a felony has been committed and reasonable cause to believe the person arrested committed it. MCL 764.15; MSA 28.874; People v Fuqua, 146 Mich App 250; 379 NW2d 442 (1985). An authorized police bulletin advising police that a felony has been committed, when coupled with other facts and circumstances, provides probable cause for an arrest without a warrant. People v Coward, 111 Mich App 55, 61; 315 NW2d 144 (1981), lv den 417 Mich 873 (1983); People v Fuqua, supra.

In this case, the East Detroit police officers were responding to a police bulletin describing the van and license number. Although there was no physical description of the suspects, the van and license plate number matched the description exactly. There is no question that the initial stop was valid. When the officers searched defendant pursuant to the stop, they uncovered four shotgun shells and their subsequent search of the van uncovered a shotgun. This additional evidence, coupled with the police bulletin, was sufficient to provide the officers with probable cause to believe that defendant committed the armed robbery. Based on this record, we do not believe the trial court’s finding is clearly erroneous.

Defendant next argues that error requiring reversal occurred when the prosecutor cross-examined defendant’s alibi witnesses concerning their failure to come forward and tell their story to police prior to the trial. We agree with those panels which have held that this type of cross-examination is admissible within the discretion of the trial court. People v McClow, 40 Mich App 185; 198 NW2d 707 (1972); People v Lafayette, 138 Mich App 380; 360 NW2d 891 (1984). Here, the alibi witnesses cross-examined by the prosecutor admitted to being close friends of the defendant and that they were aware of the charges against defendant shortly after his arrest. Based on these facts, a logical inference could be drawn that the witnesses would have brought their information to the police prior to trial. People v Perkins, 141 Mich App 186; 366 NW2d 94 (1985), lv den 423 Mich 858 (1985). The trial court did not abuse its discretion in permitting this line of inquiry on cross-examination.

We are equally unpersuaded that the trial court abused its discretion in allowing the prosecutor to examine defendant’s brother regarding his testimony on behalf of defendant in a previous trial. This type of questioning is within the discretion of the trial court. People v McConnell, 124 Mich App 672; 335 NW2d 226 (1983). After thoroughly considering this issue, the trial court ruled that the prosecutor could question the witness but could not indicate that the prior testimony was an alibi defense in a previous criminal prosecution. The court did not abuse its discretion in permitting this limited inquiry.

Next, defendant maintains that he was denied a fair trial when the prosecutor introduced allegedly improper rebuttal testimony. After the prosecutor elicited from defendant’s witnesses on cross-examination that defendant was arrested within a few days of his birthday party, June 18, the prosecutor called the police officer who responded that defendant was actually arrested on June 30. Defendant’s alibi was based upon his attendance at the birthday party. Defendant contends that the arrest date should have been introduced in the prosecution’s case in chief.

The device of eliciting a denial on cross-examination may not be used to inject an issue or to introduce evidence that could have been, but was not, introduced in the prosecutor’s case in chief. People v Losey, 413 Mich 346, 352; 320 NW2d 49 (1982). While answers elicited on cross-examination are generally not proper areas for rebuttal, rebuttal testimony may be permitted where it is relevant and material to refute the issue of alibi raised by the defense. People v Wilson, 119 Mich App 606, 615; 326 NW2d 576 (1982), lv den 417 Mich 1095 (1983). Here, the prosecution introduced the rebuttal testimony to show either that the witnesses were mistaken or that the party had not occurred on the night of the robbery. Its admission was not an abuse of discretion.

Defendant’s final claim concerns the prosecutor’s remarks during closing argument. Defendant maintains that the prosecutor improperly vouched for the credibility of the prosecution’s witnesses, denigrated the defendant’s alibi defense by accusing defendant’s witnesses of lying and expressed his personal belief in defendant’s guilt. Initially we note that defendant did not object to any of the allegedly improper remarks and our review is precluded unless a miscarriage of justice would result. People v Duncan, 402 Mich 1; 260 NW2d 58 (1977). After reviewing the comments in the context in which they were made, we are convinced that the prosecutor was merely commenting on the credibility of the witnesses, a proper area for closing argument. People v Flanagan, 129 Mich App 786, 796; 342 NW2d 609 (1983). Furthermore, if any prejudice did occur, it could have been cured by a timely requested curative instruction.

Affirmed.