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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v

UNPUBLISHED May 2, 1997

No. 186910 Saginaw Circuit Court LC No. 94-009837-FC

KARLOS ANTONUOUS CARMICHAEL, Defendant-Appellant.

Before: Young, P.J., and Markey and D.A. Teeple,* JJ. PER CURIAM. Defendant appeals by right his jury trial convictions of both first-degree murder and felony murder, MCL 750.316(1); MSA 28.548(1), armed robbery, MCL 750.529; MSA 28.727 and two counts of possession of a firearm while committing a felony, MCL 750.227b; MSA 29.424(2). The court sentenced defendant to terms of imprisonment of life without parole for the murder convictions, fifteen to forty years for the armed robbery conviction and two years for the felony-firearm convictions. We affirm in part, reverse in part and remand. Defendant first contends that this Court should reverse his convictions because the preliminary examination was unduly suggestive. One witness previously had failed to identify defendant at a lineup. At the preliminary examination, however, where defendant was the only African-American man in orange jail garb, the witness identified defendant as the gunman who shot the victim. The trial court's decision to admit the witness' identification testimony was not clearly erroneous. In People v Barclay, 208 Mich App 670, 676; 528 NW2d 842 (1995), this Court held that when a defendant does not contend that the lineup was unduly suggestive, subsequent identification by a witness at a preliminary examination is admissible at trial. The witness' failure to identify the defendant at the lineup is relevant only to the credibility of the testimony. Id. See also People v Petrella, 124 Mich App 745, 755-756;

* Circuit judge, sitting on the Court of Appeals by assignment. -1

336 NW2d 761 (1983) and People v Manuel Johnson, 58 Mich App 347, 353; 227 NW2d 337 (1975). Consequently, this issue does not provide grounds for reversal. 1 Defendant also argues that the trial court erred when it failed to instruct the jury regarding the dangers of eyewitness evidence, despite defendant's request for CJI2d 7.8 and the court's agreement to give that instruction. Defendant has not preserved this issue for review because he failed to object at trial to the court's apparent inadvertent omission of the requested instruction. People v Harris, 190 Mich App 652, 660-661; 476 NW2d 767 (1991). No miscarriage of justice occurred because the jury instructions, taken as a whole, adequately informed the jury of the factors it was to consider in evaluating witness testimony. MCL 769.26; MSA 28.1096; People v Davis, 199 Mich App 502, 515; 503 NW2d 457 (1993). Nor did the failure to give the requested instruction prejudice defendant in presenting his case to the jury. See People v Robinson, 386 Mich 551, 562; 194 NW2d 709 (1972). The witness testified that she failed to identify defendant at the lineup and the court read to the jury as part of the instructions defendant's theory of defense that he was not present during the shooting. Defendant next claims that the trial court abused its discretion when it excluded the testimony of defendant's expert on memory and perception to rebut the witness' identification of defendant. We cannot agree. Defendant's expert admittedly knew nothing about the case, had not attended the lineup or court proceedings and had not interviewed any witnesses. Relying on People v Hamilton, 163 Mich App 661; 415 NW2d 653 (1987), defendant argues that psychological expert testimony should be admitted when it will assist the jury in determining the credibility of a statement. In Hamilton, the defense offered the psychologist's evaluation of the defendant to explain the defendant's motive for his confession. Id. at 662-663. Hamilton is thus distinguishable on its facts from the instant case because it involved expert testimony regarding the defendant's psychological makeup. In this case, the proffered expert testimony concerned the psychological characteristics of persons other than defendant. Consequently, since the expert had neither seen nor spoken to these persons nor attended the lineup, his testimony was not relevant, and thus, properly excluded. People v Hill, 84 Mich App 90, 95-96; 269 NW2d 492 (1978). Finally, defendant claims that his convictions for first-degree murder, felony murder and armed robbery violate his constitutional double jeopardy protections. US Const, Am V; Const 1963, art 1,

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