People v. Roberson

165 N.W.2d 492, 14 Mich. App. 105, 1968 Mich. App. LEXIS 863

• Court: Michigan Court of Appeals
• Decided: October 24, 1968
• Docket: Docket 3,108
• Status: Published

Opinions

J. H. Gillis, J.

Defendant Clarence Roberson was charged with having committed the crime of assault with intent to commit rape.

* After a jury trial, the defendant, on September 21, 1966, was convicted as charged.

At trial defendant contended that this was a case of mistaken identity and presented 3 alibi witnesses in support of his position. The complainant testified that she was positive of her identification. A policewoman present at a show-up testified that the complainant had immediately identified the defendant from among several others who were approximately the same age, color and height.

On appeal the defendant presents several issues for our determination pertaining to the sufficiency of the evidence, the conduct of the police show-np and the adequacy of the court’s charge to the jury. Additionally, the defendant argues that the prosecution should have produced an additional witness to rehut the testimony of the defendant’s alibi witnesses.

Our review of this record establishes that there was sufficient evidence presented to the jury, which, if believed by them, would sustain a guilty verdict. The show-up was conducted prior to June 12, 1967 and, therefore, the procedure outlined in United States v. Wade (1967), 388 US 218 (87 S Ct 1926, 18 L Ed 2d 1149), does not apply. Stovall v. Denno (1967), 388 US 293 (87 S Ct 1967, 18 L Ed 2d 1199). The record further demonstrates that the show-up was conducted in a manner that did not deprive the defendant of his constitutional rights.

The court’s charge to the jury was not objected to and we will not review allegations of - technical error in light of G-CR 1963, 516.2. Having reviewed the court’s instructions as a whole, we find the charge as given was adequate and fair.

The defendant’s allegation of reversible error in failure of the people to bring in an additional witness to rebut the testimony of his alibi witnesses is not supported by any authority. Nothing in the record indicates that the additional witness was inaccessible to either party. If his testimony would have tended to prove defendant’s alibi, it is a novel proposition for defendant to claim that the duty to call such a witness was incumbent on the people.

Defendant’s final argument is that there was insufficient evidence to warrant the jury finding that the defendant had a specific intent to commit the crime. This was a question for the determination of the jury and there is certainly ample testimony from the lips of the complainant to justify the finding of the jury.

Affirmed.

Lesinski, C. J., concurred with J. H. Gillis, J.

CI,S 3961., § 750.85 (Still Aim 3962 Kev § 28.280).