People v. George Johnson

5 Mich. App. 257 (1966) 146 N.W.2d 107

PEOPLE
v.
GEORGE JOHNSON.

Docket No. 935.

Michigan Court of Appeals.

Decided November 22, 1966.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert B. Currie, Prosecuting Attorney, and Bruce J. Scorsone, Chief Assistant Prosecuting Attorney, for the people.

William J. Ginster, for defendant.

BURNS, J.

The defendant, George Johnson, was tried and convicted of the crime of unarmed robbery^[*] From this conviction he appeals. As a basis for the appeal the defendant claims the trial court erred in: 1, failing to strike certain remarks made by a police officer as a witness in regard to a "one-man lineup;" 2, not permitting a witness (police officer) to state his opinion of the "fairness" of a one-man lineup; 3, not permitting an employee of the Federal aviation agency to state his opinion as to visibility on the day of the robbery; 4, instructing the jury to disregard the testimony of an alibi witness for failure to comply with CL 1948, § 768.20 (Stat Ann 1954 Rev § 28.1043); and 5, permitting the prosecuting witness to answer the question, "Now, do you see the taller of the two men in court here today?" when it was objected to as a leading question.

In regard to the claimed error that the court failed to strike certain remarks made by a police officer, upon cross-examination of the detective who conducted the lineup with only one person (the accused) in it, counsel for the defendant asked:

"Now, Detective Martin, is that not a highly unusual police procedure to stand one man up and show him to a victim?"

The witness stated that it was an unusual procedure. The defense attorney continued to press this particular point and finally asked:

"Q. So on that occasion, April 14th, you were saying that it was not unusual; today you say it is unusual?

"A. If there are other men available you always put more than one man in a show up and this particular instance I asked the turnkey, Mr. Milson, did we have any one in the lockup that would come close to the description of George Johnson and he told me no, so he brought George Johnson down."

Counsel for the defendant moved to strike the response on the grounds that it was self-serving and not responsive. Under the circumstances the defense practically invited the witness to make the explanatory response, and the trial court did not commit error in refusing to strike the answer.

On appeal, defendant also claims the answer was objectionable under the hearsay rule, but since that ground was not raised in the trial court, it is not properly before this Court. People v. Foley (1941), 299 Mich. 358.

Defendant's second allegation of error is that the trial court erred in not permitting a detective to state his opinion as to the "fairness" of a one-man lineup. Detective Rice was asked:

"Now, based on your experience as a deputy sheriff of the Saginaw county sheriff's department, and based on your experience as a detective of that Saginaw county sheriff's department, in your opinion, sir, is a one-man lineup fair to a defendant?"

The prosecuting attorney objected that the question was not relevant, that the witness was not qualified as an expert in the field and that there was not any need for special knowledge in said field.

Detective Martin had already testified that a one-man lineup was unusual. Surely, the jury was competent to determine the question of fairness as well as Detective Rice. The trial court did not err in sustaining the objection.

Defendant's third claim of error is that the defendant's witness from the Federal aviation agency was not allowed to state his opinion as to the visibility on the morning of the robbery because he had not been qualified as an expert witness. Before the testimony of the witness was restricted, he had already stated:

"Well, actually, I can't say how far I could see that day. It would — it would have a lot to do with the weather conditions; if the weather was bad that day or low clouds and so on. It could definitely be restricted."

It is apparent that any opinion that this witness could have offered would have been open to conjecture as many variables entered into the picture. The admissibility of an opinion is clearly within the trial court's discretion, and we hold that such discretion was not abused.

Fourth, the defendant claims the trial court erred in instructing the jury to disregard the testimony of one Vivian Parker, an alibi witness, because of noncompliance with CL 1948, § 768.20 (Stat Ann 1954 Rev § 28.1043), which provides:

"Whenever a defendant in a criminal case not cognizable by a justice of the peace shall propose to offer in his defense testimony to establish an alibi on behalf of the defendant, * * * such defendant shall at the time of arraignment or within 10 days thereafter but not less than 4 days before the trial of such cause file and serve upon the prosecuting attorney in such cause a notice in writing of his intention to claim such defense and the names of witnesses to be called in behalf of such defendant to establish such defense known to him at that time. Names of other witnesses may be filed and served before or during the trial by leave of the court and upon such conditions as the court shall determine."

In the present case Vivian Parker was not listed as an alibi witness and the trial judge instructed the jury to disregard her testimony. The defendant, on appeal, claims that the name Vivian Smith was listed as a witness in error and that the name should have been Vivian Parker. The record indicates the defendant subpoenaed Vivian Parker.

The statute as quoted above provides, "Names of other witnesses may be filed and served before or during the trial by leave of the court and upon such conditions as the court shall determine." The record does not show that the defendant asked leave of the court to file the name of Vivian Parker as an additional witness, nor that he offered any explanation for the omission. In People v. McFadden (1956), 347 Mich. 357, the Supreme Court in regard to the same statute, said on page 360:

"No claim is made that he could not have complied with such requirement if applicable to him. The issue is, in consequence, whether he was bound to give the notice as a condition precedent to the introduction of the tendered proof."

And, on pages 362, 363:

"If the defendant is entitled to such right, the conclusion logically follows that he may not avoid compliance with a requirement, imposed by statute with reference to such procedure, prescribed, not for the benefit of the defendant but for the benefit and protection of the public. The trial judge in the instant case was not in error in denying defendant the right to introduce testimony for the purpose of establishing an alibi on the ground that notice of such defense had not been given to the people."

Willie Smith and Anna Knight had already testified to the alibi prior to the defense calling Vivian Parker, and her testimony would have been cumulative. Under the circumstances the trial court did not commit reversible error by excluding her testimony.

With regard to defendant's last claim, we dismiss it by merely citing CL 1948, § 768.24 (Stat Ann 1954 Rev § 28.1047):

"Within the discretion of the court no question asked of a witness shall be deemed objectionable solely because it is leading."

Judgment affirmed.

HOLBROOK, P.J., and HOFFIUS, J., concurred.

NOTES

[*] CL 1948, § 750.530 (Stat Ann 1954 Rev § 28.798).