People v. Parker , 60 Mich. App. 368 ( 1975 )

60 Mich. App. 368 (1975) 230 N.W.2d 437

PEOPLE
v.
PARKER

Docket No. 19685.

Michigan Court of Appeals.

Decided April 9, 1975.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Peter E. Deegan, Prosecuting Attorney, and Peter R. George, Chief Appellate Attorney, for the people.

Larry R. Farmer, Deputy State Appellate Defender, for defendant.

Before: R.B. BURNS, P.J., and T.M. BURNS and R.M. MAHER, JJ.

Leave to appeal denied, 395 Mich ___.

PER CURIAM.

Defendant Robert Earl Parker was convicted by a jury on June 7, 1973, of armed robbery. MCLA 750.529; MSA 28.797. On December 10, 1973, defendant was sentenced to serve 4 to 20 years in prison and now appeals as of right. Since defendant's allegations of error relate to the trial court's evidentiary rulings and other procedural matters, a detailed recitation of the facts of this case is unnecessary, and thus only those facts necessary for a proper disposition of the issues will be presented.

Defendant was tried twice on the same charge because the first jury was unable to reach a verdict. Defendant now claims on appeal that he was subjected to double jeopardy by the second trial. We disagree. It has long been held in Michigan that the discharging of a jury and the holding of a new trial does not result in double jeopardy where the jury cannot agree on a verdict.^[1]People v Hall, 24 Mich. App. 509, 513; 180 NW2d 363 (1970), lv den, 384 Mich. 785 (1970), People v Duncan, 373 Mich. 650; 130 NW2d 385 (1964), In re Weir, 342 Mich. 96; 69 NW2d 206 (1955).

Defendant next contends that since suspicion of the commission of the armed robbery had already focused on him, the use of an eight-picture photo display was error because there was no showing that he could not have been produced for a lineup and because the photo display was impermissibly suggestive. People v Lee, 391 Mich. 618; 218 NW2d 655 (1974), is directly on point and dispositive of defendant's first claim. As to the question of suggestiveness, in pointing out that the fairness of the identification procedure must be evaluated in the light of the totality of the circumstances, the Lee Court said at 626; 218 NW2d at 659:

"The United States Supreme Court stated in Simmons v United States, 390 U.S. 377, 384; 88 S. Ct. 967; 19 L. Ed. 2d 1247 (1968), that:

"`[C]onvictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.' (Emphasis added.)"

Applying this test to the case at bar, we hold that the photo display in this case was not impermissibly suggestive.

Defendant next claims by way of supplemental brief that 1968 PA 154, which created the district court and provided it with criminal jurisdiction, is in violation of the title-body clause, Const 1963, art 4, § 24. This argument is without merit in light of People v Milton, 393 Mich. 234; 224 NW2d 266 (1974).

Finally, defendant has advanced other claims of error relating to the trial court's response to a question submitted by the jury and the propriety of the trial court's instruction on flight. We have examined these claims and have found them lacking in substance. Decisional discussion is, therefore, unnecessary.

Affirmed.

NOTES

[1] For a similar Federal decision, see Downum v United States, 372 U.S. 734, 736; 83 S. Ct. 1033, 1034; 10 L. Ed. 2d 100, 102 (1963).