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02/10/76 PEOPLE v. DREW

February 10, 1976

PEOPLE
v.
DREW



Appeal from Oakland, John N. O'Brien, J.

Leave to appeal denied, 397 Mich .

McGregor, P. J., and D. E. Holbrook, Jr. and M. J. Kelly, JJ. McGregor, P. J., concurred. D. E. Holbrook, Jr., J. (concurring in part, Dissenting in part).

SYLLABUS BY THE COURT

Opinion of the Court

1. -- Photographic Identification -- In-Custody Accused -- In-Court Identification -- Independent Basis.

Photographic identification of a criminal suspect should not be used where the accused is in custody, however, if it is used the accused has a right to have counsel present at the photographic showing; such a photographic showing without counsel present, although error, will not render inadmissible later in-court identification testimony if that testimony has a basis independent of the tainted photographic display procedures.

2. -- Identification -- Photographic Identification -- Independent Basis.

A robbery victim's identification of a defendant was properly admitted into evidence even though the defendant was not represented by counsel at a photographic showup held while the defendant was in custody where the prosecution showed by clear and convincing evidence that the victim's identification of the defendant had a basis independent of the photographic identification procedure.

3. Witnesses -- -- Cross-Examination -- Collateral Matters -- Rebuttal.

The answers of a witness on cross-examination as to merely collateral matters become binding on the cross-examiner and may not be contradicted through introduction of further testimony of other witnesses regarding those collateral matters.

4. Witnesses -- -- Rebuttal Testimony -- Collateral Matters -- Harmless Error.

Admission of rebuttal testimony regarding a loan made to a defendant by his brother, which was clearly collateral where it had been established that the defendant was in dire financial straits, was harmless error because the brothers agreed that there had been a loan and the only disagreement was as to the time the loan had been made.

5. -- Evidence -- Impeachment -- Prior Convictions -- Judge's Discretion.

The admission of evidence of prior felony convictions for impeachment purposes is a matter within the discretion of the trial Judge.

6. -- Evidence -- Impeachment -- Prior Convictions -- Length of Sentences -- Waiver of Objection -- Preserving Issue.

Allowance of testimony as to the length of a defendant's prior sentences for purposes of impeachment is reversible error; the fact that such information is brought out by the defense attorney does not constitute a waiver where there had been a prior ruling by the trial court that either counsel could inquire into the defendant's prior felony convictions and number of years spent in prison, and the defense counsel had objected to that prior ruling and had preserved the issue.

Concurring in Part and Dissent in Part by D.E. Holbrook, Jr., J.

7. -- Evidence -- Impeachment -- Prior Convictions -- Length of Sentences -- Questioning by Defense ...


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