People v. Angers
| Decision Date | 27 September 1971 |
| Docket Number | No. 2,Docket No. 8411,2 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Daniel G. ANGERS, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
James A. Ruhala, Draper, Daniel & Ruhala, Flint, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert F. Leonard, Pros. Atty., Donald A. Kuebler, Chief Asst. Pros. Atty., for plaintiff-appellee.
Before R. B. BURNS, P.J., and FITZGERALD and GILLIS, JJ.
Defendant appeals as of right his jury conviction on a charge of robbery armed, M.C.L.A. § 750.529 (Stat.Ann.1971 Cum.Supp. § 28.797). Defendant was sentenced to serve 10 1/2 to 25 years in the State prison for the offense.
On July 23, 1968, two armed men robbed a party store in Flint. While the two men were leaving the store, one of them removed his mask and was identified by witnesses as codefendant Fuston Thomas. 1 The two men drove away in a red convertible; the license number was recorded by witnesses. Approximately 30 minutes after the robbery, defendant was arrested by police with codefendant Thomas in a car that matched the getaway car and had the same license plate number. The car was owned by defendant. Defendant, although not positively identified, met the general description of the second man in the robbery.
Defendant's first issue on appeal is that the trial court committed reversible error by denying defendant's motion to quash the information. Defendant contends that there was not sufficient evidence introduced at the preliminary hearing to establish probable cause to believe that defendant committed the crime.
Absent a clear abuse of discretion on the part of the examining magistrate, this Court will not disturb his determination regarding establishment of probable cause at the preliminary examination. People v. O'Leary (1967), 6 Mich.App. 115, 148 N.W.2d 516; People v. Lunsford (1969), 20 Mich.App. 325, 174 N.W.2d 38.
The evidence introduced at the preliminary examination in the instant case showed, (1) defendant's general characteristics fit those given by witnesses, (2) his car was used in the robbery, and (3) he was arrested with positively-identified codefendant Thomas soon after the robbery. While such evidence may not have required a finding of probable cause, neither does it preclude such a finding. Lunsford, supra.
Defendant next contends that it was reversible error for the trial court to deny defendant's motion for a separate trial. M.C.L.A. § 768.5 (Stat.Ann.1954 Rev. § 28.1028) places the decision concerning joint or separate trials of two jointly-indicted defendants within the discretion of the trial court. The determination of the trial court as to this issue will not be overturned absent an affirmative showing that a joint trial prejudiced the substantial rights of the accused. People v. Schram (1966), 378 Mich. 145, 142 N.W.2d 662.
Neither the record below nor defendant's brief on appeal establishes any prejudice to substantial rights of the defendant as a result of the joint trial. Defendant, in his brief, alludes to possible prejudice if his codefendant took the stand. However, neither codefendant took the stand, so that situation did not arise.
This case fits under the general rule that when the defendants are charged with the same crime and the same evidence is to be used to implicate both defendants in the joint commission of the crime, the denial of a motion for a separate trial is not an abuse of discretion. People v. Carter, (1970), 28 Mich.App. 83, 184 N.W.2d 373; People v. Schram (1966), 378 Mich. 145, 142 N.W.2d 662.
Defendant next contends that the trial court abused its discretion in denying defendant's motion for a mistrial. Defendant's motion was based largely on the denial of a separate trial, which we have already dealt with, and also on the effect of certain testimony by a witness who claimed he had committed the crime. The witness had been a cellmate of defendant while defendant was awaiting trial. The claimed confession of the witness, rather than exculpating defendant, appears to have inculpated him in the minds of the jurors because that confession placed defendant Angers with codefendant Thomas Before the crime. This was the only evidence introduced placing the two together before the crime.
Defendant did not object below to the introduction of the confession into evidence and cannot...
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People v. Thomas, Docket No. 8402
...granted. People v. Cook (1970), 24 Mich.App. 401, 180 N.W.2d 354. The decision of the trial court is affirmed. 1 See People v. Angers (1971), 36 Mich.App. 28, 193 N.W.2d 170. ...