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01/06/76 PEOPLE v. NEWBY

January 6, 1976

PEOPLE
v.
NEWBY



Appeal from Recorder's Court of Detroit, John P. O'Brien, J.

Leave to appeal applied for.

V. J. Brennan, P. J., and Bashara and R. M. Maher, JJ.

SYLLABUS BY THE COURT

1. -- Instructions to Jury -- Deadlock -- Allen Charge -- Coercion.

An Allen charge may be appropriate where a jury has indicated difficulty in reaching a decision but has not clearly stated that they are hopelessly deadlocked; such a charge is not per se coercive and any claim of coercion must be determined on a case-by-case basis on appeal.

2. -- Evidence -- Eyewitness Identification -- Expert Testimony -- Jury.

A complainant's eyewitness testimony, if believed by the trier of fact, is sufficient evidence to support a criminal conviction, even where there is uncontradicted expert testimony which conflicts with the complainant's identification; the weight and credibility to be accorded the testimony of witnesses is for the jury.

The opinion of the court was delivered by: Brennan

Ernest Newby, Jr., was convicted of armed robbery and rape. Defendant appeals.

Defendant, Ernest Newby, Jr., was convicted by a jury of armed robbery and rape, in violation of MCLA 750.529; MSA 28.797 and MCLA 750.520; MSA 28.788. Defendant was sentenced to serve concurrent terms of four to ten years in the state penitentiary. Defendant appeals as of right.

The complainant was accosted when she returned to her home after grocery shopping. The felon forced her into her home at gun point. After ransacking the apartment for valuables, the robber then raped the complainant. She testified that the rapist wiped his private parts with a sweater which belonged to her husband which he had found in the home. A police chemist testified that her analysis of the stains on the sweater revealed that the semen came from a person having a different blood type than that of the defendant.

The complaining witness positively identified the defendant as the felon. On direct examination, the following testimony was adduced by the prosecutor.

"Q. How long would you say this man was in the ...


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