People v. Turner , 116 Mich. App. 421 ( 1982 )

116 Mich. App. 421 (1982) 323 N.W.2d 425

PEOPLE
v.
TURNER

Docket No. 57161.

Michigan Court of Appeals.

Decided May 20, 1982.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Michael F. Bakaian, Assistant Prosecuting Attorney, for the people.

Norman R. Robiner, for defendant on appeal.

Before: D.C. RILEY, P.J., and R.B. BURNS and S. EVERETT,^[*] JJ.

S. EVERETT, J.

The defendant was convicted of assault with intent to commit criminal sexual conduct involving sexual penetration, MCL 750.520g; MSA 28.788(7), and violation of the felony-firearm statute, MCL 750.227b; MSA 28.424(2). He appeals as a matter of right.

Of those issues raised in the appeal, only one merits discussion. This relates to testimony of a police officer regarding the identification of the defendant by the complainant at a lineup. The officer testified that the defendant was identified. Over objection, he was allowed to state the language used by the complainant including her words, "I'm positive".

MRE 801(d) reads, in part, as follows:

"A statement is not hearsay if — (1) Prior statement of witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is one of identification of a person made after perceiving him."

The case of People v Sanford, 402 Mich 460; 265 NW2d 1 (1978), was decided before the adoption of the Michigan Rules of Evidence. However, the question presented here was considered there. Three members of the Court held that not only could the identifier testify as to a prior identification but, under appropriate circumstances, so could a third party. They held that the question of allowing the third party, a police officer, to testify regarding the identification was one within the discretion of the trial court and should take into account whether the identification procedure was fair, unbiased and whether it involved a violation of the constitutional rights of the defendant.

Two justices held that prior identification should be limited to the testimony of the identifier and that testimony of third parties was inadmissible hearsay. They did state, however, that the third-party testimony is admissible insofar as offered to prove the facts and circumstances surrounding the identification, providing such facts and circumstances had independent relevance to the issues in the case. They stated, further, that with the adoption of the Michigan Rules of Evidence testimony by the third party should be admitted under certain limited circumstances.

The rule of evidence referred to above was adopted from the Federal Rules of Evidence. In the federal courts, it has been held that testimony by the identifier may be corroborated by third persons present at the identification. United States v Lewis, 565 F2d 1248 (CA 2, 1977), cert den 435 US 973; 98 S Ct 1618; 56 L Ed 2d 66 (1978). The federal rule has also been interpreted to allow the third party to state the basis of the identification. United States v Fritz, 580 F2d 370 (CA 10, 1978), cert den 439 US 947; 99 S Ct 340; 58 L Ed 2d 338 (1978).

It is clear, therefore, that the third party may at least testify as to the facts surrounding the identification including the fact of identification. While it is less clear, it appears that the proper application of the rule of evidence permits, in appropriate cases, the third party to set forth the manner and words of the identifier.

We find no error in the admission of the disputed testimony and affirm the convictions.

R.B. BURNS, J., concurred.

D.C. RILEY, P.J. (concurring).

I write separately to acknowledge my opinion in People v Prophet, 101 Mich App 618; 300 NW2d 652 (1980). On the basis of Prophet, I would conclude that it was improper for the officer to testify as to what the complainant actually said. However, it is also the law in Michigan that the admission of incompetent hearsay testimony may be considered harmless error where the same facts are shown by other competent testimony. People v Hoerl, 88 Mich App 693; 278 NW2d 721 (1979). In this case, the complainant had already testified as to defendant's actions at the time in question and had identified defendant in court. The officer's testimony, in light of the other identification evidence, did not constitute reversible error.

NOTES

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