PEOPLE
v.
MICHAEL
Docket No. 105960.
Michigan Court of Appeals.
Decided November 20, 1989.Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of the Criminal Division, and Janice M. Joyce Bartee, Assistant Prosecuting Attorney, for the people.
Robert E. Slameka, for defendant on appeal.
Before: GRIBBS, P.J., and MURPHY and NEFF, JJ.
NEFF, J.
Following a jury trial, defendant was convicted of second-degree murder, MCL 750.317; MSA 28.549, and armed robbery, MCL 750.529; MSA 28.797. Defendant was sentenced to a term of 100 to 150 years on each conviction. Defendant appeals as of right. We affirm but remand for resentencing.
I
Defendant's convictions arose out of the robbery-murder of seventeen-year-old Latonia Graham. Latonia's mother found Latonia's body in her ransacked bedroom. Latonia had been stabbed twenty times in her eyes, face, jaw, neck and back. Her spinal cord and left lung were damaged, and she had massive internal bleeding. There were fingernail marks on her neck, and a small bone near her Adam's apple was broken. A video cassette recorder and a hunting knife were missing.
II
Defendant's first issue on appeal is whether his lineup identification and a statement made prior *238 to the lineup should have been suppressed as the product of an illegal arrest. We note that, while defendant objected below to admission of his statement, he did not challenge admission of the lineup identification. Objections raised on one ground are insufficient to preserve an appellate attack based on different grounds. In re Davis, 166 Mich. App. 735, 738; 420 NW2d 872 (1988).
This Court will not disturb a trial court's ruling at a suppression hearing unless that ruling is clearly erroneous. People v Burrell, 417 Mich. 439, 448; 339 NW2d 403 (1983). The trial court here did not clearly err in finding that defendant was not under arrest at the time of the lineup. An investigating officer asked the fifteen-year-old defendant and his mother if they would talk to him about the homicide and they agreed. The officer testified at the suppression hearing that there was no information that defendant had committed the crime but that the name "Mark" had come up in the investigation and he wanted to see whether defendant was that person. Defendant volunteered an exculpatory statement and, as he was leaving, agreed to participate in a lineup. Defendant's mother had no objection to a lineup. At the subsequent lineup, the decedent's sister identified defendant as the person she last saw with decedent. Defendant, accompanied by his mother, was told that he was a suspect and was advised of his constitutional rights.
A person is arrested when, by means of physical force or show of authority, his freedom of movement is restrained. United States v Mendenhall, 446 U.S. 544, 553; 100 S. Ct. 1870; 64 L. Ed. 2d 497 (1980); People v O'Neal, 167 Mich. App. 274, 280; 421 NW2d 662 (1988). Under the circumstances of this case, we believe that a reasonable person *239 would have believed he was free to leave prior to the lineup identification.
III
Next, defendant contends that the trial court erred by allowing Officer Gerds to testify concerning statements made by the identifying witness at the lineup. We first note that this issue was not properly preserved for our review by either objection or request for a curative instruction at trial. Because of the uncertainty of the status of the law on this point, however, we believe that we should address the issue.
A
The controversy here surrounds the applicability of MRE 801(d)(1) to the admissibility of testimony concerning identification. The rule provides in pertinent part:
(d) Statements which are not hearsay. A statement is not hearsay if
(1) Prior Statement of Witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is one of identification of a person made after perceiving him[.]
B
The question is whether the rule removes only the testimony of the identifier from the hearsay category or whether a third party may testify concerning the out-of-court statement of identification by the identifier.
*240 In People v Dixon, 161 Mich. App. 388, 395-396; 411 NW2d 760 (1987), Judge MacKENZIE succinctly described the split of authority that has developed with regard to the scope of the rule:
Some panels have held that while MRE 801(d)(1) allows the declarant (in this case, the victim) to testify as to his or her prior identification of a defendant, it does not allow a third party to testify about the declarant's identification of defendant; however, it does allow the third party to testify about the facts and circumstances surrounding that prior identification.... Other panels have held that MRE 801(d)(1) allows a third party to testify concerning an identification of a defendant at a lineup. [Citations omitted.]
In People v Sanford, 402 Mich. 460; 265 NW2d 1 (1978), our Supreme Court split three ways on the issue. In People v Prophet, 101 Mich. App. 618; 300 NW2d 652 (1980), then Judge, now Chief Justice, RILEY wrote for the panel. Her opinion notes that the three separate opinions of the Sanford case analyze the impact of MRE 801(d)(1) on prior Michigan law concerning the admissibility of third-party identification testimony. Prophet, supra, pp 621-623. Her conclusion was as follows:
In the wake of Sanford, perhaps all that can be said is that the exact parameters of MRE 801(d)(1) on third-party identification testimony remain unsettled. This Court, nevertheless, has previously rejected the prosecutor's argument that MRE 801(d)(1) excludes the statements at issue from the definition of hearsay. People v Hoerl, 88 Mich. App. 693, 701-702 n 5; 278 NW2d 721 (1979); People v Washington, 84 Mich. App. 750, 755-756; 270 NW2d 511 (1978). Although the rule has been interpreted as permitting a witness to testify concerning his or her own identification, this Court has not yet held that the rule allows a third party to testify concerning *241 the identification of another. Cf., People v Adams, 92 Mich. App. 619; 285 NW2d 392 (1979). [Prophet, supra, p 623.]
No Supreme Court case after Sanford has discussed the issue.
C
We hold that MRE 801(d)(1) does not apply to the testimony of a third party concerning the statement of identification by the identifier. This is classic hearsay testimony, and the rule does not create an express exception to the hearsay rule for third-party testimony. A third party's testimony should be limited to the facts and circumstances surrounding the identification, as has long been the rule in Michigan. People v Londe, 230 Mich. 484; 203 N.W. 93 (1925); People v Poe, 388 Mich. 611; 202 NW2d 320 (1972); Prophet, supra, p 624.
D
The question then becomes whether the admission of such third-party testimony in violation of the hearsay rule can be found to be harmless.
The danger in the admission of such third-party testimony lies in the situation where the identification of the defendant by a victim or witness is all or substantially all of the evidence to convict and credibility of the identifier is a crucial question. In those circumstances, there is the strong possibility of improper bolstering by a third party of the identification testimony. Indeed, it is difficult to imagine any reason for the introduction of the third-party testimony other than to bolster the identification.
In Prophet, the panel held that third-party testimony *242 regarding prior identification should be limited to the circumstances surrounding the identification, and a third party should not be permitted to repeat the statement of identification. The opinion goes on to say:
This is especially true where, as here, a central issue at trial is identification and where the third party is a police officer, whose testimony may be given undue weight by the jury. [Prophet, supra, p 624.]
The testimony in this case is a good example of the bolstering effect of the third-party witness. After the testimony and cross-examination of the identifying witness, a six-year-old child, Officer Gerds testified about the events of the lineup at which defendant had first been identified:
A. [Officer Gerds]: Autumn Diggs started jumping up and down and pointing her finger, was banging against the glass and she was saying, "there he is, there he is," something like, "dare he is, dare he is."
Q. [Mr. Simowski]: And she identified Marquelo Michael, is that correct?
A. She identified Mr. Michael as Mike.
E
In this case, while the testimony of the officer improperly bolstered the identification by the young witness, the error was harmless under the test announced in People v Oliver, 111 Mich. App. 734, 757; 314 NW2d 740 (1981), lv den 414 Mich. 970 (1982).
There was ample evidence that defendant had been at the home of the victim on the day of the *243 murder and robbery and that he had been there on prior occasions. Defendant's fingerprint was found in the room where the murder and robbery took place.
When defendant was first questioned about the murder and robbery, he denied knowing the victim or ever being at her home. However, after being identified in the lineup, he recanted his exculpatory statement, acknowledging that he had previously known the victim, and admitting to being alone with her at the home on the day the crimes were committed. He also admitted being in the bedroom that day, but only after it was suggested that a fingerprint had been found. However, no one mentioned where in the house the fingerprint had been found and, apparently, defendant assumed that it had been found in the bedroom, where he knew he had been and where the crimes had been committed.
The testimony and evidence in this case were such that, had the improper hearsay testimony of Officer Gerds not been admitted, it is not reasonably possible that any juror would have voted to acquit. Neither was the error in admitting the testimony so offensive to the maintenance of a sound judicial system that reversal is required. Oliver, supra, pp 757-758.
Accordingly, we conclude that harmless error occurred even though Officer Gerds' testimony amounted to inadmissible hearsay bolstering of the identification testimony.
IV
Finally, defendant argues that his sentence of 100 to 150 years was excessive.
This was a particularly brutal crime as noted by the trial judge. Nevertheless, the sentence of 100 *244 to 150 years violates the dictates of People v Moore, 432 Mich. 311; 439 NW2d 684 (1989). Accordingly, we remand this case for resentencing.
Affirmed, but remanded for resentencing. We do not retain jurisdiction.
MURPHY, J., concurred.
GRIBBS, P.J. (concurring).
I concur in the result but write separately to indicate my agreement with the line of cases which have held that MRE 801(d)(1) allows a third party to testify concerning an identification of a defendant at a lineup. See People v Beam, 125 Mich. App. 289; 335 NW2d 684 (1983), lv den 418 Mich. 858 (1983), reh den 418 Mich. 858 (1984); People v McConnell, 124 Mich. App. 672, 679-680; 335 NW2d 226 (1983); People v Turner, 116 Mich. App. 421; 323 NW2d 425 (1982); People v Adams, 92 Mich. App. 619; 285 NW2d 392 (1979), lv den 408 Mich. 890 (1980).
I am persuaded by Justice RYAN'S concurring opinion in People v Sanford, 402 Mich. 460, 493-498; 265 NW2d 1 (1978), in which he considers the history of MRE 801(d)(1):
Nonetheless, as indicated by the adoption of MRE 801(d)(1), this Court is now persuaded that testimony of the kind found inadmissible in [People v] Poe [388 Mich. 611; 202 NW2d 320 (1972)], and the kind described in footnote 1, should be admitted under certain limited circumstances.
Recognizing that identification testimony has peculiar strengths and weaknesses, including those discussed by my Brother Williams in Poe, supra, the Court has subscribed to the view of most commentators on the law of evidence, as well as the Congress and the United States Supreme Court, that a special rule should be carved out for the admissibility of extrajudicial statements of identification. In adopting MRE 801(d)(1), the *245 Court implicitly acknowledges, in addition, that the hearsay character and cumulative effect of the testimony of a third person to an out-of-court identification, as well as that given by the identifier himself, is not so inherently prejudicial that it must necessarily be excluded in all cases. Our new rule, like its Federal counterpart, FRE 801(d)(1)(C), allows the introduction of such testimony so long as the identifier testifies at trial and is subject to cross-examination concerning the statement of identification. It is thought that the possible prejudicial impact of the cumulative effect of such testimony should be mitigated by the opportunity for cross-examination of the declarant which is made a condition for the admission of the testimony. [Sanford, 402 Mich 497-498.]
In this case, both the identifier and the officer testified at trial and were subject to cross-examination. I would find that the trial court did not abuse its discretion in determining the officer's testimony admissible under MRE 801(d)(1).