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03/23/76 PEOPLE v. WILLIAM CLARK

March 23, 1976

PEOPLE
v.
WILLIAM CLARK



Appeal from Wayne, Thomas J. Foley, J.

McGregor, P. J., and Bashara and Allen, JJ.

SYLLABUS BY THE COURT

1. -- Photographic Identification -- Eyewitness Identification -- Impermissible Suggestions -- Substantial Likelihood -- Irreparable Misidentification.

Convictions based on eyewitness identification at trial following a pretrial identification by photograph may be set aside because the photographic identification procedure was impermissibly suggestive only where the procedure, when evaluated in the light of the totality of the circumstances, was so suggestive as to give rise to a substantial likelihood of irreparable misidentification.

2. -- Appeal and Error -- Prosecutorial Misconduct -- Preserving Question -- Harboring Error.

Allegations of prosecutorial misconduct will not be heard on appeal, absent manifest inJustice, where defense counsel did not record objections at trial, ask for a corrective instruction, or move for a mistrial; counsel cannot sit back at trial and harbor error to be used as an appellate parachute in the event of jury failure.

3. -- Prosecutorial Misconduct -- Evaluating Conduct -- Relationship to Evidence -- Argument as a Whole.

A prosecutor's closing argument must be evaluated as a whole in light of the relationship it bears to the evidence adduced at trial when improprieties are claimed.

4. -- Gross Indecency -- Constitutional Law -- Vagueness -- Definite Standards -- Statutes.

The statute proscribing gross indecency between a male and a female is not unconstitutionally vague and does provide a standard which is definite enough for the ascertainment of guilt (MCLA 750.338b; MSA 28.570[2]).

The opinion of the court was delivered by: Bashara

William V. Clark was convicted of assault with intent to commit rape and gross indecency between a male and female. Defendant appeals.

Defendant was convicted on June 27, 1974 by a jury of assault with intent to commit rape, MCLA 750.85; MSA 28.280, and gross indecency between a male and female, MCLA 750.338b; MSA 28.570(2). He appeals.

In the early morning hours of February 20, 1974 a man gained entrance by ploy to the apartment of the complaining witness. He attempted to rape ...


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