PEOPLE
v.
JACKSON
Docket No. 7,786.
Michigan Court of Appeals.
Decided June 2, 1970.Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Samuel J. Torina, Chief Appellate Lawyer, and Luvenia D. Dockett, Assistant Prosecuting Attorney, for the people.
Robert Jackson, in propria persona.
*326 Before: V.J. BRENNAN, P.J., and McGREGOR and AGER,[*] JJ.
PER CURIAM.
The defendant herein was tried and convicted of armed robbery, MCLA § 750.529 (Stat Ann 1970 Cum Supp § 28.797), and from this verdict he appeals.
On January 23, 1968, a party store in Detroit was robbed of $125. Present during the robbery were the owner and her daughter. The daughter selected the defendant from a pretrial lineup, and again positively identified him in court. Although the owner selected the defendant from photographs shown to her, she was unable to select the defendant from the lineup. However, she did make a positive in-court identification of the defendant.
Defendant on appeal contends that the store owner's pretrial identification was tainted in that she selected the defendant by photograph, which therefore resulted in a tainted identification. Simmons v. United States (1968), 390 U.S. 377 (88 S. Ct. 967, 19 L. Ed. 2d 1247). Simmons did not hold that the mere selection of photographs prior to trial taints the in-court identification. The Court therein held that "each case must be considered on its own facts," and that "convictions based on eyewitness identification at trial, following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons, supra, 390 U.S. 384 (88 S. Ct. 967, 19 L. Ed. 2d 1253).
The defendant herein makes the bare assertion that identification by photograph necessarily taints *327 the in-court identification. This contention is without merit.
This Court finds that sufficient evidence was presented to the trier of fact which, if believed, would sustain the conviction herein. People v. Floyd (1968), 15 Mich. App. 284, 285.
Conviction affirmed.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.