PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Thomas William SAWYER, Defendant-Appellant.
Docket No. 159960.
Court of Appeals of Michigan.
Submitted October 2, 1996, at Lansing. Decided February 25, 1997, at 9:00 a.m. Released for Publication May 15, 1997.*63 Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Donald E. Martin, Prosecuting Attorney, and Guy L. Sweet, Assistant Prosecuting Attorney, for People.
State Appellate Defender by Charles J. Booker, for Thomas W. Sawyer.
Thomas W. Sawyer, in pro per.
Before McDONALD, P.J., and BANDSTRA and C.L. BOSMAN[*], JJ.
McDONALD, Presiding Judge.
Following a jury trial, defendant was convicted of kidnapping, M.C.L. § 750.349; M.S.A. § 28.581, first-degree criminal sexual conduct, M.C.L. § 750.520b(1)(f); M.S.A. § 28.788(2)(1)(f), and possession of a firearm during the commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2), and sentenced to concurrent terms of life imprisonment for the kidnapping conviction and twenty-five to fifty years' imprisonment for the first-degree criminal sexual conduct conviction, plus two years' consecutive imprisonment for the felony-firearm conviction. Defendant appeals as of right. We affirm.
*64 On appeal, defendant claims he was denied effective assistance of counsel. Although defendant questions almost all aspects of the representation he received, he has failed to overcome the strong presumption he was afforded effective assistance. People v. Eloby (After Remand), 215 Mich.App. 472, 547 N.W.2d 48 (1996). This Court will not substitute its judgment for that of trial counsel in matters of trial strategy. People v. Barnett, 163 Mich.App. 331, 414 N.W.2d 378 (1987). The defense strategy posited by defendant, the "all cases" theory, would have been highly prejudicial to defendant and would most likely have constituted an error sufficient to find counsel's assistance ineffective.
Although defendant's claim of ineffective counsel lacks merit, one of defendant's allegations of error involves a question that merits discussion. Defendant claims his counsel was deficient because he did not move to suppress the identification of defendant on the basis of an unfair lineup. Our review reveals the trial court correctly found the lineup to be fair. Physical differences between defendant and the other lineup participants goes to the weight of the identification and not its admissibility. People v. Benson, 180 Mich.App. 433, 447 N.W.2d 755 (1989), modified on other grounds 434 Mich. 903, 453 N.W.2d 681 (1990). Additionally, the fact a victim is told the attacker is in the lineup does not alone render a lineup unduly suggestive. People v. Larry, 162 Mich.App. 142, 412 N.W.2d 674 (1987). However, defendant further argues that, even assuming the lineup was fair, the identification should be suppressed because lineup counsel were not allowed to attend the postlineup interview.
In support of his argument, defendant cites Richardson v. State, 600 P.2d 361 (Okla.Crim.App.1979), and Daigre v. Maggio, 705 F.2d 786, 788 (C.A.5, 1983). Richardson is inapposite. Richardson involves the requirement for attorney presence at procedures that are postlineup but preidentification. The attorneys in the cases involving this defendant were present during the lineup and made aware of defendant's identification before the witness left the lineup viewing room. Further, although the court in Daigre did hold the exclusion of an attorney from a postlineup interview may be impermissible, the court found it impermissible only if counsel is denied the opportunity to interview the witnesses afterward and is denied the right to cross-examine them at trial. Id. Defendant failed to present any evidence that any attorney was barred from a subsequent interview of the witness who made the identification. While there may have been an interview without the presence of counsel after the lineup, defense counsel was not barred from a subsequent interview. We decline to accept defendant's invitation to make witness interviews "critical stages" for purposes of the Sixth Amendment right to counsel. To require police or prosecutors to bring defense attorneys along whenever they interview a witness after charges have been instituted is an untenable concept. The purpose behind forbidding a bar to postlineup interviews is clearly to enable the attorney to question the witness about the lineup and about the witness' identification. There is absolutely no indication defendant's attorneys were prevented from so questioning in this case. Moreover, defendant's attorney questioned the victim and other witnesses about the lineup during trial. In fact, that questioning is the basis for defendant's ineffective assistance claim. Defendant claims counsel was ineffective because he asked questions of the witnesses to attack the identification procedures, but did not bring a motion to suppress the identification. As previously noted the lineup procedure was not unduly suggestive.
Defendant next raises numerous alleged evidentiary errors, none of which we find meritorious. This Court reviews a trial court's admission of evidence under the abuse of discretion standard. People v. Taylor, 195 Mich.App. 57, 489 N.W.2d 99 (1992). There is an abuse of discretion only when an unprejudiced person, considering the facts on which the trial court acted, would say there was no justification or excuse for the ruling. Id.
The trial court did not abuse its discretion in permitting evidence of defendant's *65 cruising activities. The "other acts" testimony was relevant to illustrate defendant's freedom or opportunity and also a scheme or plan, MRE 404(b), and was not unfairly prejudicial. People v. VanderVliet, 444 Mich. 52, 508 N.W.2d 114 (1993). Introduction of the contested cross-examination testimony regarding the May 28 and November 12, 1991, reports would have resulted in the jury learning defendant was a suspect in other child molestation cases, an area all parties agreed would not be brought before the jury. Moreover, a trial court is given wide latitude to limit cross-examination. People v. Adamski, 198 Mich.App. 133, 497 N.W.2d 546 (1993). Finally, the contested photographs were relevant and not unduly gruesome, People v. Coddington, 188 Mich.App. 584, 470 N.W.2d 478 (1991), and the list of suspect vehicles was not admitted for the purpose alleged by defendant.
Defendant next claims his conviction of kidnapping must be reversed because there was insufficient evidence to prove the movement of the victim was not merely incidental to the underlying crime of criminal sexual conduct. We disagree. Defendant forced the victim into a vehicle at gunpoint when the victim was close to his home, drove for at least thirty minutes, removed the victim from the car, assaulted him, put him back in the car, and drove for another thirty minutes, crossing at least one county line before releasing him. The element of asportation was met. People v. Barker, 411 Mich. 291, 307 N.W.2d 61 (1981).
Defendant's claim the search warrant used to obtain damaging evidence against him was not supported by probable cause has already been decided adversely to defendant in People v. Sawyer, 215 Mich.App. 183, 545 N.W.2d 6 (1996).
Finally, we find no merit to the issues raised in defendant's supplemental brief filed in propria persona. Although rambling and confused, it appears the majority of the issues have either already been addressed or deal with evidence in other cases not relevant here. Inasmuch as defendant intimates the police deprived him of his right to due process by failing to discover certain alleged exculpatory evidence, we note the police are not required to seek and find such evidence. People v. Miller (After Remand), 211 Mich.App. 30, 535 N.W.2d 518 (1995).
Defendant's convictions are affirmed.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.