Opinion
Docket No. 55248.
Decided November 2, 1982.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Andrea L. Solak, Assistant Prosecuting Attorney, for the people.
Sidney Kraizman, for defendant.
Defendant was convicted by a jury of first-degree felony murder, MCL 750.316; MSA 28.548, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). He was sentenced to mandatory prison terms of life for the murder conviction and two years for the felony-firearm conviction. He appeals as of right. We affirm.
Two witnesses testified that as they entered a bar they saw defendant and another individual, identified as defendant's brother, standing outside. Shortly thereafter, two men entered the bar and announced a holdup. One of the men, wearing a ski mask which covered his face, carried a rifle. The other man, wearing nothing over his face, carried a handgun. One of the witnesses testified that defendant was the man wearing the ski mask. The second witness testified that he saw defendant and the other individual in the vestibule of the bar immediately before the holdup. The bar patrons were told to lie on the floor and the perpetrators began collecting their wallets. During the course of the robbery, one Raymond Pertile struggled with the masked man and was shot several times, apparently by the other perpetrator. He died of multiple gunshot wounds.
The primary issue on appeal concerns the identification of defendant. Both witnesses who identified defendant at trial also testified that they identified him as one of the two perpetrators of the crime at a hearing conducted approximately five months prior to trial. Although the nature of that hearing was not disclosed to the jury, the reference was to a probation revocation hearing. Defendant contends that it was error to allow the witnesses to testify as to the earlier identification because defendant was not represented by counsel at that hearing.
Defendant failed to object to any of the testimony concerning the pretrial identification on the basis that it was obtained in the absence of counsel. Appellate review is, therefore, precluded absent a finding of manifest injustice. People v Moss, 397 Mich. 69; 243 N.W.2d 254 (1976); People v King, 107 Mich. App. 208, 210; 309 N.W.2d 207 (1981). We find no manifest injustice with regard to the testimony of the first witness because the testimony was first elicited by defendant on cross-examination. Prior to this time, the prosecutor had informed both the court and defense counsel that he would not question either witness about the hearing during direct examination. It is apparent upon a review of the record that defense counsel elicited the testimony in an attempt to suggest that the witness's in-court identification should be discredited because it was based upon the prior identification. We believe this to be a matter of trial strategy with which we will not interfere. People v King, supra. It would be unfair for defendant to be able to suggest that the witness's in-court identification was tainted as being based only on an out-of-court observation and preclude the prosecutor from questioning the witness further in an attempt to rehabilitate her on redirect examination. We find no manifest injustice in the admission of this testimony.
It was the prosecutor who first elicited the testimony concerning the pretrial identification from the second witness. Although it may have been improper for the prosecutor to elicit this testimony on direct examination, we find no manifest injustice. It is apparent through defense counsel's questioning of the first witness that it was his strategy to use the pretrial identification to discredit the witnesses' in-court identifications. He opened the door to this line of questioning.
Defendant next asserts that the trial court erred in allowing two police officers to testify, over a hearsay objection, that the man several witnesses identified in a lineup as being one of the perpetrators was named Joseph Hunt, defendant's brother. Each of those witnesses testified that he or she identified Joseph Hunt as one of the perpetrators. Defendant's only objection is that the officers could not testify as to the name of the person identified because that would be hearsay. Although the courts of this state have not addressed this particular issue, it has been held that evidence of a name by which a person is known is not within the rule excluding hearsay evidence. See State v Shields, 619 S.W.2d 937 (Mo App, 1981), and authorities cited therein. The officers' testimony was not inadmissible on hearsay grounds.
Defendant next argues that the trial court's instruction on felony-firearm requires reversal. We disagree. Since no objection was made to the instruction, reversal is not warranted unless the court failed to instruct on an essential element of the offense or a basic or controlling issue, or the instruction is so misleading and confusing as to result in a miscarriage of justice. In the present case, the court read the felony-firearm statute, MCL 750.227b; MSA 28.424(2), and the information to the jury. We find this was sufficient. The statute clearly states the two elements of the offense, namely, that defendant carried or possessed a firearm, and that the firearm was carried or possessed during the commission of any felony or attempted felony. Wayne County Prosecutor v Recorder's Court Judge, 406 Mich. 374, 397-398; 280 N.W.2d 793 (1979). We reject defendant's argument that the court's failure to state that defendant must knowingly carry or possess the firearm was fatal. We also reject defendant's claim that the court's failure to define "firearm" requires reversal. Although the trial court failed to give CJI 11:9:01, subds (6) and (9), which define firearm, those subsections are optional and are to be given only where a clarifying instruction is warranted. Inasmuch as defendant never argued that the rifle in question was not a firearm, the trial court was not required to give CJI 11:9:01, subds (6) and (9), and its failure to do so will not constitute error.
Defendant also claims that the jury's verdict was ambiguous and should be set aside. The jury found defendant guilty of "felony murder, robbery armed". Defendant contends that the verdict is ambiguous because it fails to state whether defendant was guilty of first- or second-degree murder. Although the court did not use the phrase "felony murder" in defining first-degree murder, it did state that to find defendant guilty of first-degree murder the jury must find that at the time of the act which caused the death of Pertile, the defendant was committing or attempting to commit or assisting another in the commission of the crime of armed robbery or larceny. At another point in the instructions the court read the first-degree murder statute and instructed the jury that they could find defendant guilty of that crime only if they found that it was committed during the perpetration of a larceny or an armed robbery. Finally, the jury was given a verdict form containing seven possible verdicts. Included within those verdicts was a finding of guilty of felony murder, armed robbery; guilty of felony murder, larceny; or guilty of murder in the second degree. The jury found defendant guilty of felony murder, armed robbery.
A jury verdict will not be void for uncertainty if the jury's intent can be clearly deduced by reference to the pleadings, the counts charged and the entire record. People v Rand, 397 Mich. 638, 643; 247 N.W.2d 508 (1976). Viewing the record as a whole, we find no ambiguity in the jury's verdict.
Defendant's final contention on appeal is that he was denied the effective assistance of counsel. In particular, defendant contends that trial counsel should have moved to suppress evidence of the prior identifications, should have moved to suppress evidence of his prior convictions and should have obtained a clarification of the jury's verdict. In light of our earlier determination that trial counsel's use of the prior identifications was a matter of trial strategy, we do not find that the failure to move to suppress those identifications constitutes ineffective assistance of counsel. People v Currelley, 99 Mich. App. 561; 297 N.W.2d 924 (1980), lv den 411 Mich. 904 (1981). Also, in light of our earlier determination that the jury verdict was not ambiguous, we find no ineffective assistance on counsel's part for his failure to seek a clarification.
Appellate counsel also asserts that, but for trial counsel's failure to suppress evidence of defendant's prior convictions, defendant would have testified at trial and, presumably, would have had a reasonable likelihood of acquittal. This contention is not borne out by the record. In pretrial pleadings, counsel indicated that defendant was not going to testify at trial. In a motion for a temporary restraining order filed prior to trial, counsel specifically stated that defendant was not going to take the stand in his own defense. It is reasonable to conclude that trial counsel did not move to suppress evidence of defendant's convictions because defendant was not going to take the stand. Defense counsel need not make unnecessary motions. In summary, we do not find trial counsel ineffective for his failure to move for a clarification of the verdict. We do not find that any of these claimed errors constitute a "serious mistake" the absence of which would have given defendant a reasonable likelihood of acquittal. People v Garcia, 398 Mich. 250; 247 N.W.2d 547 (1976); People v Means (On Remand), 97 Mich. App. 641; 296 N.W.2d 14 (1980).
Affirmed.