People v. Hill , 28 Mich. App. 502 ( 1970 )

28 Mich. App. 502 (1970) 184 N.W.2d 572

PEOPLE
v.
HILL

Docket No. 8413.

Michigan Court of Appeals.

Decided December 7, 1970.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Thomas G. Plunkett, Prosecuting Attorney, and Frank R. Knox, Assistant Prosecuting Attorney, for the people.

Campbell, Lee, Kurzman & Leitman, for defendant.

Before: QUINN, P.J., and FITZGERALD and CARROLL,^[*] JJ.

PER CURIAM.

A jury convicted defendant of armed robbery;^[1] he was sentenced and he appeals.

About 5:30 a.m. on March 2, 1968, two men entered the Wixom Pure station where Thomas Johns, a 15-year-old boy, was the attendant. One of the men requested the key for the toilet, obtained the key and left. On his return, this man requested Johns to change a dollar. When Johns opened the cash register, the man placed a gun in Johns' side and reached into the cash register for money. The man struck Johns who fell down, and the man struck Johns again. Currency was taken from the cash register.

That day, or March 3, 1968, Johns identified defendant as the man with the gun who reached into the cash register for money. This identification was from photographs shown to Johns at the police station, and it is the basis of defendant's claim that the trial court erred reversibly in not granting defendant's pretrial motion to strike the in-court identification of defendant by Johns. This motion was founded on defendant's claim that the preliminary examination transcript established that Johns was given only one photograph for identification purposes, and thus the identification was overly suggestive in violation of Simmons v. United States (1968), 390 U.S. 377 (88 S. Ct. 967, 19 L. Ed. 2d 1247).

While excerpts from Johns' testimony at preliminary examination support defendant's contention that Johns made the identification from a single photograph, that transcript read in its entirety establishes that Johns selected defendant's photograph from a group of upwards of 20 photographs in making this identification, and it was not overly suggestive.

Defendant asserts error because of statements by the prosecuting attorney in his opening statement and closing argument. No objection was made below and objection cannot be raised for the first time on appeal. People v. Panknin (1966), 4 Mich. App. 19. We decline further comment.

Defendant is correct in his contention that it was error for the prosecuting attorney to state during defendant's cross-examination "that nobody came forth in your defense with an alibi that you were at home", with reference to the preliminary examination. However, defendant's prompt objection was sustained and the jury was instructed to disregard the statement. This precludes a finding of reversible error. People v. Wolke (1968), 10 Mich. App. 582.

Defendant claims reversible error because the trial court failed to give his requested instruction on burden of proof as it relates to the defense of alibi. We have reviewed the entire charge of the court, and find that it substantially contained the language of defendant's request and it was not error to refuse to give the instruction requested.

During the trial, two witnesses referred to "mug shots" of defendant. On his objection, the testimony was stricken and the jury was instructed to disregard it, but the trial court declined to grant a requested mistrial. The action of the trial court was proper basis for denying a mistrial, and it also removed the error from the classification of reversible error.

Affirmed.

NOTES

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

[1] MCLA § 750.529 (Stat Ann 1970 Cum Supp § 28.797).