People v. Fly

Per Curiam. Defendant was tried and convicted by a jury on a charge of second-degree murder, in violation of MOLA § 750.321 (Stat Ann 1954 Rev § 28.549), and sentenced to 25 to 50 years’ imprisonment. First, the defendant complains that the in-eourt identification was improperly admitted into evidence because of the allegation that the lineup was conducted without benefit of counsel. However different witnesses testified that the defendant had been seen in the Dequindre Party Store, where deceased Benjamin Newton worked, at around 1:30 a.m. on November 12, 1969. Between that time and 1:49 a.m., the deceased was shot several times with a handgun and died as a result of multiple gunshot wounds. The defendant was arrested on February 13,1970. A gun found in his possession matched the description of the murder weapon. On appeal defendant raises for the first time the issue that the trial court erred in permitting an in-court identification of the defendant based upon an illegal lineup. Defendant contends that he was not represented by counsel at the lineup and therefore the admission of identification testimony based upon the lineup was erroneous. Other testimony than that here complained of positively identifies the defendant as present at the scene of the crime. Assuming [663] arguendo that defendant was not represented by counsel, we conclude that the court’s error in admitting the identification testimony was harmless beyond a reasonable doubt. Defendant’s contention is without merit. See People v. Hutton (1970), 21 Mich App 312. Defendant also contends that the court erred in permitting the prosecutor to reopen his case and introduce the testimony of three additional witnesses. The court, in permitting the testimony of additional witnesses provided that defendant’s attorney would have the first opportunity to examine the witnesses. No testimony of significance was elicited from these witnesses. While it is true that they may have been res gestae witnesses, the defendant was aware of their existence and at no time objected to the prosecution’s failure to indorse them on the information. In view of these circumstances we conclude that the admission of the testimony of the additional witnesses did not prejudice the defendant. No reversible error was committed. People v. Nelson (1971), 29 Mich App 251; People v. McLaughlin (1966), 3 Mich App 391. Affirmed.