McDonald, P.J.
Defendant appeals as of right from his conviction, following bench trial, of first-degree felony murder, MCL 750.316; MSA 28.548, and possession of a firearm while committing a felony, MCL 750.227b; MSA 28.424(2), claiming the trial court improperly convicted him of first-degree murder rather than second-degree murder; a denial of his right to the effective assistance of counsel; and a denial of his right to receive a fair trial where inadmissible identification testimony was introduced at trial. We reverse.
[296] Defendant was charged with the murder of Renard Wilson. On September 24, 1986, Wilson and a witness, Sandy Parham, were at a gas station when an armed man accosted Wilson and demanded money. After a scuffle, Wilson surrendered his money. Before fleeing, the assailant took a few steps back and shot Wilson. Wilson died as a result of the gunshot wound. The dispositive issue at trial, as well as on appeal, involves the sufficiency of the identification evidence.
At trial defendant was identified as the assailant by two witnesses. Sandy Parham testified that shortly after the incident she viewed a corporeal lineup at which defendant was not present. Par-ham indicated that, although she could not be sure, one of the men resembled the assailant. Thereafter, Parham viewed a photographic lineup in which defendant’s photograph was included. Parham indicated defendant’s photograph looked like the assailant, revealing similar features, but that she still was not absolutely sure. Parham testified that she did not become sure defendant was the assailant until she saw him in person in court.
The prosecution also produced the identification testimony of Odell Inge. Inge testified that he was at the gas station visiting the station’s attendant when the shooting occurred and that, from the cashier’s booth, looking at an angle through two panes of glass, he saw defendant talking with Wilson near the gas pumps. Later he heard a shot and turned to see Wilson fall and defendant’s back as he ran from the area. Inge testified defendant was an acquaintance from his neighborhood whom he had seen earlier in the day with a gun in his possession. Because Inge saw defendant earlier in the day, he was certain the assailant was dressed in blue jeans, a black coat or shirt, and white [297] tennis shoes, even though Parham’s description of the assailant indicated he was dressed in brown. Inge provided the police a description of the assailant that also included a facial scar. A man other than defendant fitting the description provided by Inge including the description of clothing, was arrested the next morning and took part in the corporeal lineup viewed by Parham. This man was noted by Parham as looking like the assailant. At trial, Inge admitted he was "dramatizing” at the preliminary examination when he testified he saw defendant pull a gun from his waist and shoot the victim. Inge conceded his testimony at the preliminary examination was based on how he imagined the shooting must have happened rather than what he actually saw happen. Inge never saw defendant with a gun on the evening of the shooting.
The parties stipulated to the introduction of a written statement made by Johnny Lorrison the night of the incident as well as the result of the two corporeal lineups viewed by Lorrison. Although not available for our review, it appears the stipulated materials indicated Lorrison witnessed the incident and he picked out a man other than defendant from a lineup which included defendant and yet another man from a lineup which did not include defendant.
Following the close of proofs, the trial court indicated the prosecution’s evidence revealed the commission of the charged offense, first-degree felony murder, rendering inapplicable the lesser included offenses. In the court’s view, the only issue to be determined was one of identification— whether the prosecution brought forward the man who actually committed the offense. After some deliberation and review of the testimony, the trial court ultimately concluded the prosecution pre[298] sented sufficient identification evidence to link defendant to the commission of the crime and convict him of first-degree felony murder.
On appeal, defendant first claims the trial court erred in failing to consider lesser included offenses. We find no merit to this argument. The court clearly indicated the lesser included offenses were inapplicable where the prosecution’s proofs set forth the commission of the charged offense.
Defendant next claims the introduction of Par-ham’s identification testimony was improper and constituted error requiring reversal. We agree.
Following defendant’s original claim of ineffective assistance of counsel stemming from his trial counsel’s failure to file a pretrial motion to suppress the in-court identifications, we remanded to the trial court for an evidentiary hearing. During the course of this hearing, defendant indicated that prior to the instant trial another judge had ruled Parham’s identification testimony inadmissible. Further inquiry revealed defendant was charged with the same offenses in the prior proceeding. Defendant, represented by different counsel in the prior proceeding, was successful in moving for the suppression of Parham’s identification testimony. However, those proceedings were dismissed at the prosecution’s request when a witness failed to appear. Sometime thereafter, the prosecution refiled the same charges, which resulted in the instant convictions.
Generally, the decision whether to admit evidence is within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. People v Watkins, 176 Mich App 428; 440 NW2d 36 (1989). Here, the trial court and both parties appear to agree that given the prior court order suppressing Parham’s identification testimony, its admission at trial was error. [299] However, the parties do not agree what effect the error had on the proceedings.
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McDonald, P.J.
Defendant appeals as of right from his conviction, following bench trial, of first-degree felony murder, MCL 750.316; MSA 28.548, and possession of a firearm while committing a felony, MCL 750.227b; MSA 28.424(2), claiming the trial court improperly convicted him of first-degree murder rather than second-degree murder; a denial of his right to the effective assistance of counsel; and a denial of his right to receive a fair trial where inadmissible identification testimony was introduced at trial. We reverse.
[296] Defendant was charged with the murder of Renard Wilson. On September 24, 1986, Wilson and a witness, Sandy Parham, were at a gas station when an armed man accosted Wilson and demanded money. After a scuffle, Wilson surrendered his money. Before fleeing, the assailant took a few steps back and shot Wilson. Wilson died as a result of the gunshot wound. The dispositive issue at trial, as well as on appeal, involves the sufficiency of the identification evidence.
At trial defendant was identified as the assailant by two witnesses. Sandy Parham testified that shortly after the incident she viewed a corporeal lineup at which defendant was not present. Par-ham indicated that, although she could not be sure, one of the men resembled the assailant. Thereafter, Parham viewed a photographic lineup in which defendant’s photograph was included. Parham indicated defendant’s photograph looked like the assailant, revealing similar features, but that she still was not absolutely sure. Parham testified that she did not become sure defendant was the assailant until she saw him in person in court.
The prosecution also produced the identification testimony of Odell Inge. Inge testified that he was at the gas station visiting the station’s attendant when the shooting occurred and that, from the cashier’s booth, looking at an angle through two panes of glass, he saw defendant talking with Wilson near the gas pumps. Later he heard a shot and turned to see Wilson fall and defendant’s back as he ran from the area. Inge testified defendant was an acquaintance from his neighborhood whom he had seen earlier in the day with a gun in his possession. Because Inge saw defendant earlier in the day, he was certain the assailant was dressed in blue jeans, a black coat or shirt, and white [297] tennis shoes, even though Parham’s description of the assailant indicated he was dressed in brown. Inge provided the police a description of the assailant that also included a facial scar. A man other than defendant fitting the description provided by Inge including the description of clothing, was arrested the next morning and took part in the corporeal lineup viewed by Parham. This man was noted by Parham as looking like the assailant. At trial, Inge admitted he was "dramatizing” at the preliminary examination when he testified he saw defendant pull a gun from his waist and shoot the victim. Inge conceded his testimony at the preliminary examination was based on how he imagined the shooting must have happened rather than what he actually saw happen. Inge never saw defendant with a gun on the evening of the shooting.
The parties stipulated to the introduction of a written statement made by Johnny Lorrison the night of the incident as well as the result of the two corporeal lineups viewed by Lorrison. Although not available for our review, it appears the stipulated materials indicated Lorrison witnessed the incident and he picked out a man other than defendant from a lineup which included defendant and yet another man from a lineup which did not include defendant.
Following the close of proofs, the trial court indicated the prosecution’s evidence revealed the commission of the charged offense, first-degree felony murder, rendering inapplicable the lesser included offenses. In the court’s view, the only issue to be determined was one of identification— whether the prosecution brought forward the man who actually committed the offense. After some deliberation and review of the testimony, the trial court ultimately concluded the prosecution pre[298] sented sufficient identification evidence to link defendant to the commission of the crime and convict him of first-degree felony murder.
On appeal, defendant first claims the trial court erred in failing to consider lesser included offenses. We find no merit to this argument. The court clearly indicated the lesser included offenses were inapplicable where the prosecution’s proofs set forth the commission of the charged offense.
Defendant next claims the introduction of Par-ham’s identification testimony was improper and constituted error requiring reversal. We agree.
Following defendant’s original claim of ineffective assistance of counsel stemming from his trial counsel’s failure to file a pretrial motion to suppress the in-court identifications, we remanded to the trial court for an evidentiary hearing. During the course of this hearing, defendant indicated that prior to the instant trial another judge had ruled Parham’s identification testimony inadmissible. Further inquiry revealed defendant was charged with the same offenses in the prior proceeding. Defendant, represented by different counsel in the prior proceeding, was successful in moving for the suppression of Parham’s identification testimony. However, those proceedings were dismissed at the prosecution’s request when a witness failed to appear. Sometime thereafter, the prosecution refiled the same charges, which resulted in the instant convictions.
Generally, the decision whether to admit evidence is within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. People v Watkins, 176 Mich App 428; 440 NW2d 36 (1989). Here, the trial court and both parties appear to agree that given the prior court order suppressing Parham’s identification testimony, its admission at trial was error. [299] However, the parties do not agree what effect the error had on the proceedings.
The prosecution argues the harmless error rule applies and that in applying the rule the trial judge properly found the introduction of the improper testimony to be harmless. We agree the harmless error analysis is the proper standard with which to review the improper admission of the identification testimony, see People v Michael, 181 Mich App 236; 448 NW2d 786 (1989); People v Foreman (On Remand), 179 Mich App 678; 446 NW2d 534 (1989), but do not agree that the error was harmless. The harmless error analysis involves two inquiries: first, whether the error was so offensive to the maintenance of a sound judicial system that it never can be regarded as harmless and, second, whether the error was harmless beyond a reasonable doubt. People v Gilbert, 183 Mich App 741; 455 NW2d 731 (1990). We believe admission of Parham’s identification testimony was improper under both inquiries. First, allowing a prosecutor to avoid a trial court’s evidentiary ruling by dismissing the suit and refiling before another trial court will encourage judge shopping and is clearly offensive to the maintenance of a sound judicial system. Permitting such a practice not only denigrates the trust placed in the resolution of a dispute by a trial court, but also burdens the judicial system with the filing of excessive actions and all costs attendant thereto. Although in the instant case all parties claim ignorance of the prior ruling, excepting the trial judge who had no cause to suspect a prior action had been filed, we find such ignorance inexcusable. A simple review of the prior court file by defense counsel, who admittedly was aware that a previous action was instituted against defendant, would have uncovered the order suppressing Parham’s testimony. [300] We find defense counsel’s failure to discover and review the prior court file unpardonable. Likewise, we do not find too onerous the expectation that the prosecution have access and notice of actions instituted by its office.
We therefore conclude that, under the first inquiry of the harmless error test, introduction of this previously suppressed testimony was so offensive as to be intolerable. Moreover, even were we to find differently under the first prong of the test, we still would reject application of the rule under the second prong because we cannot say the error was harmless beyond a reasonable doubt. As the trial judge indicated at the close of proofs, the only real issue to be determined was identification. Although the trial judge now states that he does not "think” he would have reached a different result absent Parham’s identification testimony, we do not believe it can be said beyond a reasonable doubt that the improper testimony did not affect the verdict. Although stating that it was minimal, the trial judge admits that "there’s no question that [he] placed some weight on the identification of the young lady.” In ruling on defendant’s motion for a new trial, the judge stated, "I wrestled with this, I don’t think it would have made any difference, I don’t think it would have made any difference.”
We do not "think” that this finding is sufficient to support the conclusion that the error was harmless beyond a reasonable doubt. This is especially true where our review of the trial judge’s original findings of fact in support of defendant’s conviction reveals several references to Parham’s identification of defendant.
Although our resolution of the prior issue mandates reversal of defendant’s convictions, we will [301] briefly address defendant’s remaining claim that he was denied the effective assistance of counsel.
As previously noted, defense counsel was aware that prior proceedings arising out of the same conduct had been instituted against defendant. Although counsel knew the prior action had been dismissed, she found no order of dismissal or other record of the prior case in the court file. Nonetheless, counsel failed to investigate further, proceeding on the instant action without knowledge of what occurred in the prior action. We do not believe an attorney of ordinary training and skill in the criminal law would have so acted. We have already concluded the introduction of the identification testimony was not harmless error and thus conclude defendant was prejudiced by counsel’s failure to acquaint herself with the prior history and the court order suppressing the testimony. Thus, under the standard set forth either in People v Garcia, 398 Mich 250; 247 NW2d 547 (1976), or Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984), we find defendant was denied his right to the effective assistance of counsel. People v Wilson, 180 Mich App 12; 446 NW2d 571 (1989).
Because we believe the trial judge on remand would have substantial -difficulty putting out of his mind his previously expressed views and findings, and to preserve the appearance of justice, retrial should be had before a different judge. People v Evans, 156 Mich App 68; 401 NW2d 312 (1986).
Reversed.