People v. Bohm

• Decision Date: 30 August 1973
• Docket Number: No. 2,Docket No. 16029,2
• Citation: 212 N.W.2d 61,49 Mich.App. 244
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ronald Joseph BOHM, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 61

212 N.W.2d 61

49 Mich.App. 244

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ronald Joseph BOHM, Defendant-Appellant.

Docket No. 16029.

Court of Appeals of Michigan, Division No. 2.

Aug. 30, 1973.

Released for Publication Nov. 20, 1973.

William M. Havey, Mt. Clemens, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., George M. Parris, Pros. Atty., Thaddeus F. Hamera, Chief Appellate Lawyer, Stephen F. Osinski, Asst. Pros. Atty., for plaintiff-appellee.

Before HOLBROOK, P.J., and DANHOF and ADAMS,* JJ.

HOLBROOK, Presiding Judge.

Ronald J. Bohm, defendant herein, was tried before a jury and found guilty of larceny in a building, contrary to M.C.L.A. § 750.360; M.S.A. § 28.592. ¹ He was sentenced to prison for a term of from 2 to 4 years. A motion for a new trial and a petition for a writ of habeas corpus were denied by the trial court, and defendant now brings this appeal.

The complaining witness, Rosemarie Brooks, her sister, and her sister's fiance, a Mr. Kamradd, arrived at the Playgrounds Bar at approximately 8:30--9:00 p.m. on New Year's Eve. Miss Brooks had a silver-colored purse containing approximately $10 with her and placed it on her table. At a time when she was dancing, two witnesses testified that they saw the defendant come by the table, pick up the purse, and leave hurriedly through the front door. Miss Brooks said she saw the defendant as he exited from the bar. Several persons followed the defendant out the front door, but he was not seen again until one of those searching for him outside stated he saw the defendant walk past the front entrance and go to the rear entrance which he entered. Defendant was physically described by the witnesses and identified also by the way he walked and danced. He was also described as wearing a white shirt open at the neck without a jacket. When defendant came in the back entrance Mr. Kamradd and another person took charge of him until the police arrived. The other person and Mr. Kamradd forcibly seized the keys to defendant's automobile from the defendant.

After questioning the witnesses, the police arrested the defendant and took him in custody. After being arrested the defendant was taken to the patrol car where he was patted down and given his Miranda warnings by Officer Marengo. While two other officers were searching for a Chevy II automobile, Officer Marengo requested of the defendant identification papers. The defendant responded by giving the officer his selective service card and registration to his Cadillac automobile. At that point in time defendant was removed from the patrol car and the officer testified: 'we researched him and Officer Jenny left with a set of keys and the registration to the Cadillac'. Finding the Cadillac they approached it cautiously, Officer Bankard on the right side and Officer Jenny on the left side. Officer Jenny spotted a purse on the back floor space of this car. Officer Bankard confirmed the sighting by looking through the window and saw the purse partially sticking out of a rolled-up floor mat. The purse was retrieved by the two officers and returned to the complaining witness who identified it as her purse.

Defendant at that time and ever since has consistently denied he took the purse, that it must have been someone else. At the trial the defendant called Mr. Roy Sontag who testified that an individual by the name of John Crooks who was dressed similarly to defendant on the right in question and who was present in the bar had in fact taken the purse.

Defendant raises eight issues on appeal. We consider them in our order.

I

The claim of defendant that the prosecuting attorney was guilty of abuse of discretion in charging him with larceny in a building, M.C.L.A. § 750.360; M.S.A. § 28.592, rather than with larceny, M.C.L.A. § 750.356; M.S.A. § 28.588, is not tenable in that this Court in People v. Jackson, 29 Mich.App. 654, 655--656, 185 N.W.2d 608, 609 (1971), ruled as follows:

'Defendant would be guilty under either of the larceny statutes. The Legislature has obviously decided that larceny in a building presents a social problem separate and apart from simple larceny and that all larcenies in a building, value being irrelevant, deserve felony status. See Black v. Gladden, 237 Or. 631, 393 P.2d 190 (1964).

'The decision to charge the defendant with the felony instead of a misdemeanor is in the sound discretion of the prosecuting attorney. People v. Lombardo, 301 Mich. 451, 3 N.W.2d 839 (1942); People v. Birmingham, 13 Mich.App. 402, 164 N.W.2d 561 (1968); People v. Eineder, 16 Mich.App. 270, 167 N.W.2d 893 (1969).'

II

The claim of defendant that the complaint, warrant, municipal court's return to the circuit court, and the information were inaccurate and misleading so that he was unable to formulate a defense, is likewise untenable. People v. Jackson, Supra, p. 656, 185 N.W.2d p. 609, reads as follows:

'Defendant's arguments that the felony-larceny statute is vague and uncertain and that he was denied equal protection of the laws are without merit. It is clearly within the discretion of the Legislature to distinguish simple larceny and larceny in a building as separate social evils.'

Also see People v. Husted, 52 Mich. 624, 18 N.W. 388 (1884). The charge stated that the larceny took place in a 'bar' which is obviously a building.

Defendant further claims that the complainant did not have personal knowledge of the facts she asserted in her complaint and that, therefore, the testimony of other witnesses should have been furnished the municipal judge before the issuance of the warrant. We rule that in cases such as this one where defendant was arrested without a warrant, the legality of a defendant's arrest cannot be considered at trial. People v. Miller, 235 Mich. 340, 209 N.W. 81 (1926); People v. Robinson, 37 Mich.App. 115, 194 N.W.2d 537 (1971), and People v. Nawrocki, 6 Mich.App. 46, 148 N.W.2d 211, 150 N.W.2d 516 (1967). Defendant raised this issue for the first time in his motion for a new trial. Further, we rule that where a defendant fails to object to the validity of the arrest warrant or the complaint upon which it is based at the arraignment when the trial court obtains jurisdiction of him by the filing of an information by the prosecuting attorney and defendant pleads thereto, that he cannot thereafter object to either the complaint or the warrant. People v. Licavoli, 256 Mich. 229, 239 N.W. 292 (1931); United States ex rel. Penachio v. Kropp, 448 F.2d 110, 111 (C.A.6, 1971).

III

Defendant asserts that his sentence to prison of from 2 to 4 years constitutes cruel and unusual punishment.

This issue is ruled by People v. Jackson, Supra, which involved a defendant convicted of the same crime as the defendant herein and received the same sentence. In Jackson the Court held that the sentence was not such as to shock the conscience of the Court and was therefore not cruel and unusual. Also see People v. Sinclair, 387 Mich. 91, 194 N.W.2d 878 (1972).

IV

It is defendant's claim that his right to a speedy trial was abridged when he was not provided transcripts within the time period set out by GCR 1963, 812.3(1).

The defendant's position on this issue is without merit. In People v. Gorka, 381 Mich. 515, 520, 164 N.W.2d 30, 32 (1969), it is stated:

'Nevertheless, the defendant has had a full review of his case in this Court. The circuitous appellate route in this case, caused in part by the dilatoriness and violations of court rule by the court reporter and counsel, has not diminished the right of appeal. He has received from this Court the same appellate review he would have received from the Court of Appeals under an appeal of right. The fact that defendant, on his appellate route, encountered numerous procedural detours, some of his own making, does not compel this Court to grant him a new trial.'

V

The defendant claims that his constitutional rights of due process and equal protection were violated when he was held for three days after arrest before his arraignment.

The facts are that the defendant was arrested at approximately 11:00 p.m., on Friday, December 31, 1971, and held at the police station until Saturday, January 1, 1972, New Year's Day. At approximately 7:35 p.m. the defendant was transferred to the Macomb County jail. On Monday morning, January 3, 1972, the first legal day after the arrest, he was arraigned. M.C.L.A. § 764.13; M.S.A. § 28.871(1), provides:

'A peace officer who has arrested a person for a felony offense without a warrant must without unnecessary delay, take the person arrested before the most convenient magistrate of the county in which the offense was committed, and must make before the magistrate a complaint, stating the offense for which the person was arrested.'

Under the circumstances in this case was the delay so prejudicial as to require a reversal under the ruling in the case of People v. Hamilton, 359 Mich. 410, 102 N.W.2d 738 (1960)?

In the recent case of People v. Farmer, 380 Mich. 198, 205--206, 156 N.W.2d 504, 507 (1968), the applicable test to apply to this issue is stated as follows:

'It is maintained that the detention of defendant for three days--72 hours--from the morning of January 11, 1958, to the morning of January 14, 1958, before arraignment was such a lengthy detention as to render the confession involuntary. While this Court has repeatedly condemned the practice of undue detention, the test as to whether such a detention renders a confession involuntary is not the reasonableness of the length of time a person is detained but whether the detention has been used to coerce a confession. As was said in United States v. Mitchell, 322 U.S. 65, 70, 64 S.Ct. 896, 898, 88 L.Ed. 1140, 1143 (1943):

"There was no disclosure induced by illegal detention.'

'The duty to arraign and the nature of an improper delay has been stated by the United States Supreme Court in Mallory v. United States,...