Opinion
Docket No. 11732.
Decided February 20, 1973.
Appeal from Recorder's Court of Detroit, Henry Heading, J. Submitted Division 1 October 4, 1972, at Detroit. (Docket No. 11732.) Decided February 20, 1973.
Calvin Jones was convicted of breaking and entering with intent to commit larceny. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Edward R. Wilson, Assistant Prosecuting Attorney, for the people.
Michael Moran, Assistant State Appellate Defender, for defendant.
Before: LESINSKI, C.J., and FITZGERALD and J.H. GILLIS, JJ.
Defendant was convicted by a jury of breaking and entering with intent to commit larceny. MCLA 750.110; MSA 28.305. He was sentenced to serve from 5 to 15 years imprisonment and appeals as of right.
Defendant contends the trial court committed reversible error in failing to instruct the jury on lesser included offenses. The defendant, who presented an alibi defense, neither requested such instructions nor objected to the instructions given. The trial judge did not instruct on lesser included offenses, but did not affirmatively exclude them from the consideration of the jury. Under these circumstances, we do not reverse. MCLA 768.29; MSA 28.1052; GCR 1963, 516.2. See People v. Wynn, 386 Mich. 627 (1972); People v. Lemmons, 384 Mich. 1 (1970). See also People v. Herbert Van Smith, Jr, 388 Mich. 457 (1972).
Defendant asserts error in the questioning by the trial judge of an alibi witness for defendant. The questioning was brief, limited in scope, and material to the issues. While some of the questions might convey the impression that the trial judge became impatient with the witness, it cannot be said that he communicated to the jury any opinion as to defendant's guilt or innocence. See People v. Piscunere, 26 Mich. App. 52 (1970). There was no objection to the questioning. Furthermore, during the course of his instructions to the jury the trial judge stated:
"Now, we come to the credibility of the witnesses. That is for you to determine. You are the sole judges of the credibility. And if I have done anything to indicate to you how I want this case, or what I think this case is all about, and what the verdict should be, you should disregard that, because I should not have done that."
Any potential harm in the questioning by the trial judge was cured by these instructions. We find no prejudice to the defendant.
Defendant asserts error in admission of identification testimony derived from what he terms an impermissible suggestive lineup. Testimony revealed that one of the prepetrators wore a green T-shirt. The principal identification witness identified the defendant at trial, who was wearing a green T-shirt at the lineup.
Since no objection was raised to the lineup procedure at trial, the Court of Appeals will not consider defendant's claim absent a showing of clear injustice. People v. George Martin, 31 Mich. App. 624, 626-627 (1971). Defendant's efforts to show clear injustice on appeal are limited to statements of the principal identification witness at the preliminary examination where the witness' memory as to colors of shirts worn by other lineup participants was demonstrably vague. Yet, at trial, the same witness testified:
"Q. Now, when you went in to view that lineup, how many boys were in that lineup?
"A. Maybe it was nine or ten. I don't know how many it was. Something like that.
"Q. Do you remember how any of them were dressed?
"A. In the lineup?
"Q. Yes.
"A. No, I don't really.
"Q. Do you remember how Calvin Jones was dressed?
"A. Yes, I remember.
"Q. How was he dressed?
"A. He had on a green T-shirt, with dark trousers.
"Q. Now, when you looked at all those nine people, do you recall any of the other ones having a green T-shirt on?
"A. I think it was another one that had on one, but it wasn't as light as his.
"Q. What drew your attention to him in the lineup? Was it his haircut, was it his T-shirt, or was it his face?
"A. I actually remember him by his face.
"Q. By his face?
"A. I did. When I saw him, that was the same face I had saw come out of this lady's house."
Even assuming defendant was the only lineup participant wearing a green T-shirt, we are not convinced an impermissible suggestion arose. Several courts have concluded that wearing of the same clothing at arrest and subsequent lineup will not vitiate the lineup, even where the clothing serves to draw attention away from other lineup participants. Hernandez v. State, 7 Md. App. 355; 255 A.2d 449 (1969); Presley v. State, 224 Md. 550; 168 A.2d 510 (1961), cert den, 368 U.S. 957; 7 L Ed 2d 389; 82 S Ct 399 (1961). See also 39 ALR3d 487, § 9, p 500.
In any event, the identification witness's trial testimony renders the objection insignificant. She stated her identification was hinged on a more crucial factor, defendant's face. Thus, the case is easily distinguished from People v. Hutton, 21 Mich. App. 312, 331 (1970), where the defendant's distinctive clothing was the pivotal identifying factor.
Fourth, defendant contends it was reversible error to admit into evidence his record of misdemeanor convictions for impeachment purposes. Again, no objection was raised at trial.
As stated in People v. Pollard, 39 Mich. App. 291, 292 (1972):
"As a general proposition, the prior conviction record of a witness — including a defendant in a criminal case who takes the stand to testify in his own behalf — is admissible to impeach his credibility. * * * In contrast with People v. Farrar, 36 Mich. App. 294, 306 (1971), in this case the trial judge was not asked to exclude, in the exercise of discretion, reference to the defendant's conviction record."
Where the trial judge's discretion has not been invoked, there can be no abuse of that discretion, and consequently no error.
Defendant urges a remand for resentencing because the judge considered evidence of defendant's "immorality" at the time of sentencing. The judge had indicated his intent to sentence defendant to a lengthy term of imprisonment on the basis of the presentence recommendation. This occurred prior to a colloquy in which defendant volunteered information that his girlfriend had just given birth to his child. The judge chided defendant for failure to marry his girlfriend, but there is no showing that such information was the basis of sentencing.
Defendant argues the prosecutor inaccurately summarized the evidence in closing argument and deprived him of a fair trial. While the statement of the prosecutor regarding the number of eyewitnesses was inaccurate, the context in which it was made suggests the error was inadvertent. The effect was further mitigated by the prosecutor's accurate summarization of testimony of the individual witnesses elsewhere in his closing argument. Once again, the defense did not object. Absent objection, the claimed error will not be considered unless to avoid clear injustice. People v. Schram, 23 Mich. App. 91 (1970); People v. Childers, 20 Mich. App. 639 (1969). The record reflects no injustice. Additionally, closing arguments are not evidence, as both the prosecution and defense counsel informed the jury in their initial remarks during closing argument.
Finally, defendant contends he was denied effective assistance of counsel by his attorney's alleged failure to investigate a claim that three juveniles were in fact the perpetrators, and by his failure to subpoena additional alibi witnesses. See People v. Degraffenreid, 19 Mich. App. 702 (1969). We are not convinced. People v. Jelks, 33 Mich. App. 425, 431 (1971), requires a convicted defendant to prove his claim of inadequate representation. Where facts are not in the record, defendant must move for a new trial, and make a testimonial record of his claim in which he excludes reasonable hypotheses consistent with adequate representation. There is no such assertion in the record.
Affirmed.
All concurred.