People v. Davis

232 N.W.2d 683, 61 Mich. App. 220, 1975 Mich. App. LEXIS 1520

Opinions

J. H. Gillis, P. J.

On the morning of January 18, 1973, two men robbed the Dobbs Clothes establishment in the City of Detroit moments after the store opened at 9 a.m. Defendant was arrested more than three months later, on April 22, 1973, when he entered the store and greeted the owner who immediately recognized him as one of the men who robbed the store in January.

On October 24, 1973, defendant was found guilty by a jury of the crime of armed robbery (MCLA 750.529; MSA 28.797) and sentenced to 15 to 25 years in prison.

On appeal defendant raises several issues for our consideration, alleging that the pretrial lineup identification procedure was unduly suggestive, that the verdict was contrary to the great weight of the evidence, that various procedural irregularities occurred at trial, and that the entire handling of the arrest, pretrial and trial effectively denied defendant a fair trial.

First, we should note that our examination of the record discloses that the pretrial lineup was not unduly suggestive.

Next, we consider defendant’s request that the court suppress his prior convictions in the event that he should decide to take the witness stand. Defendant contends that the court erred in ruling on this motion. The transcript reveals that the court agreed with the argument of counsel as to misdemeanor convictions and stated that he would rule on the felony convictions at a later point. A lunch recess was then taken and immediately after lunch, counsel announced that, following a long discussion with his client, the client had elected not to testify. The issue of the admissibility of felony convictions thus became moot.

Defendant also contends that the trial court’s instruction that the defense of alibi is "easy to prove and hard to disprove” was erroneous. In People v McCoy, 392 Mich 231, 240; 220 NW2d 456, 460 (1974), the Supreme Court held that "[f]or cases tried after the publication of this opinion, it will be deemed reversible error (1) to denigrate the alibi defense 'as easily proven and hard to disprove’ * * * ”. McCoy was decided on August 2, 1974. Defendant’s trial was in October of 1973. Thus, the trial court’s instructions as of defendant’s trial date were not erroneous.

The final issue which we will discuss alleges that the trial court advised the jury that identity was the sole issue of fact to be determined by them. Our examination of the record discloses that the court did not so instruct the jury.

The court stated that the prosecutor in his argument indicated that the main question in this case was the identification, but the court very carefully instructed the jury that each and every element must be established by the prosecution and that all of the elements constituting the charge must be proved and if not proved, then the jury must find the defendant not guilty.

The other allegations have been considered and we find no reversible error.

Affirmed.

Quinn, J., concurred.