People v. Williams , 83 Mich. App. 642 ( 1978 )

Danhof, C. J.

Defendant was jury convicted of armed robbery in violation of MCL 750.529; MSA 28.797, and was subsequently sentenced to a term of 7-1/2 to 20 years in prison. Defendant appeals as of right raising four issues.

Defendant argues that the absence of counsel at his parole revocation hearing, which took place after his arrest but before his trial on the robbery charge, required the per se exclusion of any testimony concerning that parole revocation proceeding or its result at the robbery trial. The prosecution did not present any such testimony at defendant’s trial however.

Defendant further argues that the in-court identification of the defendant by the complaining witness was tainted by the impermissibly suggestive pretrial identification procedure which occurred during the parole revocation hearing. Defendant made a pretrial motion to suppress the in-court identification. Assuming that the defendant is correct that the parole revocation hearing constituted an impermissibly suggestive identification procedure, the record discloses clear and convincing evidence that the witness had a prior independent basis for his in-court identification. That basis was his observation of the robber at the scene of the crime both shortly before and during the robbery. Applying the test set out in People v Kachar, 400 Mich 78; 252 NW2d 807 (1977), reveals that the factors favoring a finding of an independent basis include the witness’s opportunity to observe the robber before and during the crime under good lighting conditions with no distractions; the fairly short time between the crime and the trial; the previous proper identification of defendant’s photograph in a nonsuggestive identification situation; the accuracy of the witness’s description of the defendant given shortly after the crime occurred; and the fact that the witness identified no one other than the defendant as the robber. Some factors do undercut the identification including the witness’s excited state during the robbery; his failure to identify defendant’s picture shortly after the robbery; and the witness’s own testimony which appears confused at points. Defendant places great emphasis on a small part of this testimony which appears to contain an unequivocal admission by the witness that he could not have identified the defendant had he not seen him at the parole revocation hearing. A fair reading of the record shows, however, that the witness misunderstood the question asked of him. The witness subsequently explained that he had not' finished his answer and that the parole hearing had no effect on his ability to identify the defendant whom he could have identified as the robber even if he had not seen him at the parole hearing. Our own reading of the question posed to the witness reveals that it contains three negatives and could easily have confused the witness. The record supports a finding of an independent basis and therefore it was not error to allow the witness to make an in-court identification of the defendant.

Defendant also contends that the prosecutor’s unobjected to statement in closing argument that the evidence was "uncontradicted and unrebutted” was an improper comment on the defendant’s failure to testify. There is no merit to this contention. People v Jacoboni, 34 Mich App 84, 86; 190 NW2d 720 (1971), People v Franklin, 70 Mich App 343, 348; 245 NW2d 746 (1976).

Defendant also argues that the prosecutor’s questioning of his alibi witnesses to determine if defendant was employed at the time of the robbery was improper. We agree. However, we do not find reversible error here because there was no objection at the trial, the questions were few, the subject was not mentioned in closing argument, and there has been no showing of manifest injustice. See People v Martin, 75 Mich App 6, 13-14; 254 NW2d 628 (1977), and People v Kincade, 61 Mich App 498, 506-507; 233 NW2d 54 (1975).

Affirmed.

Allen, J., concurred.