PEOPLE v. CLEMONS

ALLEN, P.J.

Claiming four instances of error at the trial court level, defendant appeals of right from an April 16, 1975 conviction by jury of robbery armed, MCLA 750.529; MSA 28.797. On April 30, 1975, he was sentenced to imprisonment for a period of 6 to 12 years.

Was the lineup impermissibly suggestive?

Defendant claims that it was since he was the only one in the lineup wearing a suit and the suit was a distinctive white plaid which he allegedly wore when the robbery took place in the identifying witness's apartment. A like argument was made and rejected in People v Jones, 44 Mich. App. 633, 637-638; 205 N.W.2d 611 (1973).

"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."

As in Jones, the complainant in the case before us testified that it was defendant's face, not his clothes, that made identification. When faced with the question of whether an identification is impermissibly suggestive, two factors are particularly important: (a) the length of time the witness is with the accused during the offense, and (b) the time elapsing between the offense and the identification. People v Solomon, 391 Mich. 767; 214 N.W.2d 60 (1974), adopting then Chief Judge T.J. LESINSKI'S dissent in People v Solomon, 47 Mich. App. 208, 216; 209 N.W.2d 257, 260 (1973). The robbery of complainant's apartment lasted more than two hours during which time the complainant was not blindfolded. Nothing in the transcript supports counsel's argument that while tied and bound in the apartment the complainant could see little but his assailant's feet. The lineup and identification occurred on the day following the crime. Based on these circumstances we hold that the lineup procedure was not impermissibly suggestive.

Did the trial court err in refusing to instruct on lesser included offenses, as requested by the defendant?

At the conclusion of proofs, defense counsel informed the court that he would request jury instructions on lesser included offenses but did not spell out which particular lesser included offenses would be requested. Whereupon the trial court responded that since alibi was the defense, the court felt that the charge should be "robbery armed or nothing". Relying on People v Ora Jones, 395 Mich. 379; 236 N.W.2d 461 (1975), and People v Chamblis, 395 Mich. 408; 236 N.W.2d 473 (1975), defendant argues that this is error mandating reversal and a new trial.

"If the lesser offense is one that is necessarily included within the greater, the evidence will always support the lesser if it supports the greater." Ora Jones, supra, at 390.

"Unarmed robbery is a lesser included offense of armed robbery. It is armed robbery absent the element of use of a weapon. If there is evidence to allow the case to go to the jury on the higher armed robbery offense, there must necessarily be evidence adduced at trial to support a charge of unarmed robbery." Chamblis, supra, at 424.

In response, the people assert that Jones and Chamblis stated new rules which are not retroactive and do not apply to the instant case. Prior to Jones and Chamblis it had been well established that failure to give a requested lesser included charge is not error where the lesser offense is not supported by the evidence. People v Giddens, 18 Mich. App. 588, 589; 171 N.W.2d 596 (1969), lv den, 383 Mich. 760 (1970), People v Tyrone Williams, 38 Mich. App. 146, 149; 195 N.W.2d 771 (1972). As was stated in the majority opinion in People v Netzel, 295 Mich. 353, 359-360; 294 N.W. 708 (1940), cert den, 313 U.S. 592; 61 S Ct 1116; 85 L Ed 1546 (1941).

"`To instruct the jury in a criminal case that the defendant cannot properly be convicted of a crime less than that charged, or to refuse to instruct them in respect to the lesser offences that might, under some circumstances, be included in the one so charged — there being no evidence whatever upon which any verdict could be properly returned except one of guilty or one of not guilty of the particular offence charged — is not error; for the instructing or refusing to instruct, under the circumstances named, rests upon legal principles or presumptions which it is the province of the court to declare for the guidance of the jury.' Sparf Hansen v United States, 156 U.S. 51, 103 ( 15 Sup Ct 273)."

Admittedly, the law governing requested instructions on lesser included offenses, where the testimony clearly establishes that a different offense occurred or is devoid of any testimony supporting the lesser offenses, is confused. Compare People v Lovett, 396 Mich. 101, 102; 238 N.W.2d 44 (1976), with the concurring opinion of Judge BASHARA in People v Harrison, 71 Mich. App. 226, 228; 247 N.W.2d 360 (1976). Furthermore, People v Lovett, supra, also an armed robbery case, strongly suggests that the statement quoted earlier from page 390 of Ora Jones applies retroactively. See also a trinity of cases which follow the Lovett approach. People v Jackson, 70 Mich. App. 478; 245 245 N.W.2d 797 (1976), People v Harrison, supra, and People v Charles Jackson, 71 Mich. App. 395; 249 N.W.2d 132 (1976). But the Supreme Court in Lovett did not address the retroactivity question since it failed to mention that the trial occurred before the decision in Ora Jones or Chamblis. Indeed, Lovett, a case involving a requested charge on attempt to commit, so clearly represented a retroactive situation, that the failure of the Supreme Court to mention retroactivity suggests to us the Court may have based its decision on the statute on attempts, MCLA 768.32; MSA 28.1055.

Be this as it may, we are constrained to observe that neither Ora Jones, Chamblis nor Lovett involved situations where alibi was the defense. Thus, they are not necessarily controlling, even if retroactive, in an alibi situation. We further note that at the time of trial in the present case the trial court properly applied the law as it was then understood. Given these facts and the further fact that it is still unsettled whether Ora Jones applies retroactively, we conclude that in the case before us it was not error for the court to refuse the lesser included charges.

Was defendant denied effective assistance of counsel?

Counsel's ingenuity and tenacity in pursuing the lesser included offense instructions suggests the answer to this question is "no". Nevertheless, defendant now argues that counsel's failure to move to suppress the lineup identification or to move to suppress a statement given to the police denied defendant effective representation. Defendant has not moved for a new trial or an evidentiary hearing on the issue raised. Thus, we have no record upon which review may be based. People v McKenzie, 67 Mich. App. 356, 362; 241 N.W.2d 205 (1976), People v Taft, 70 Mich. App. 634; 247 N.W.2d 319 (1976).

Did the trial court err, reversibly, in its instruction that an alibi is "relatively easy to advance and hard to refute or disprove"?

Citing People v McCoy, 392 Mich. 231, 240; 220 N.W.2d 456 (1974), and this Court's recent interpretation thereof in People v Eaton, 68 Mich. App. 740; 243 N.W.2d 723 (1976), defendant vigorously argues that the trial court's instruction on alibi is reversible error. Prior to giving this instruction the court gave copies thereof to counsel. Defense counsel objected to that portion thereof which is underscored below and called to the trial judge's attention People v McCoy. The trial judge responded that he, too, had reviewed McCoy and had concluded that if he added a cautionary instruction with respect to identification of the defendant, the McCoy error would be corrected. Defense counsel persisted in his objection and the trial judge proceeded to give the alibi instruction as he had proposed plus a cautionary instruction on identification. Significantly, the trial court's interpretation of McCoy is virtually identical with the people's interpretation thereof in People v Eaton, 68 Mich. App. 740, 742; 243 N.W.2d 723 (1976), and in the appeal now before us. In Eaton, the people's position was rejected albeit reluctantly. Because reversal was ordered in Eaton, defendant concludes reversal should be ordered here. For the reasons stated below, we disagree.

The instruction in the instant case differs from the offending instruction in McCoy in three significant respects. First, the language was meaningfully different. Rather than employing the words "is easily proven" the court used the words "easy to advance". The difference between "prove[n]" and "advance" is more than a semantical device for the purpose of avoiding the McCoy-Eaton result. The word "prove" tends to confuse by implying the burden of proof shifts to the defendant. Second, the charge omitted the sentence "if it is established * * * that the defendant was not in a position so he could have committed the crime". McCoy found this sentence objectionable because it strongly implied that it was defendant's burden to prove the alibi. Third, the trial judge included a cautionary instruction requested by defendant on identification. In McCoy, the cautionary instruction was omitted, thereby resulting in what the Supreme Court found to constitute an unbalanced instruction. In summary, we find that the instruction in McCoy was or might be construed to be unbalanced in the sense of shifting the burden of proof to the defendant whereas the instruction given in the instant case specifically negated that impression.

In our judgment the thoughtfully sculptured instruction given by the trial court was balanced. Defendant received a fair trial.

Affirmed.

D.E. HOLBROOK, J., concurred.