People v. Calhoun, Docket Nos. 10124

• Decision Date: 26 April 1971
• Docket Number: No. 1,10407,Docket Nos. 10124,1
• Citation: 33 Mich.App. 141,189 N.W.2d 743
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Watt CALHOUN and Lee Covington, Defendants-Appellants,
• Court: Court of Appeal of Michigan — District of US

Page 743

189 N.W.2d 743

33 Mich.App. 141

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Watt CALHOUN and Lee Covington, Defendants-Appellants,

Docket Nos. 10124, 10407.

Court of Appeals of Michigan, Division No. 1.

April 26, 1971.

Rehearing Denied May 18, 1971 in 10124.

Leave to Appeal Denied July 14, 19, 1971.

Released for Publication Sept. 21, 1971.

Arthur J. Tarnow, Detroit, State Appellate Defender, for calhoun.

Carl Ziemba, Detroit, for Covington.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Angelo A. Pentolino, Asst. Pros. Atty., for plaintiff-appellee.

Before V. J. BRENNAN, P.J., and QUINN and O'HARA, ^* JJ.

O'HARA, Judge.

Having waived jury trial, Watt Calhoun and Lee Covington were convicted by the trial judge of robbery armed. M.C.L.A. § 750.529 (Stat.Ann.1971 Cum.Supp. § 28.797). On these appeals of right, their cases were consolidated on our own motion.

Defendant Calhoun assigns two errors: (1) That ineffectual representation deprived him of his constitutional right to counsel, and (2) that reversible error was committed when the trial court unduly restricted cross-examination of the complaining witness regarding his ability to identify those who perpetrated the robbery.

As his only ground for appeal, defendant Covington asserts that his fifth amendment rights were violated when the prosecutor inquired as to whether defendant had made exculpatory statements to the arresting officers.

Both defendants were positively identified by the proprietor of a clothing store, Mr. Whitlow, as the persons who had robbed him at gun point, carrying off wearing apparel from the premises after tying him up. Upon freeing himself, Whitlow courageously, if somewhat incautiously, pursued the defendants outside. He then attracted the attention of a nearby policeman and described the happenings hereinbefore detailed. The possibility of misidentification was minimized since the officer had previously observed defendants in front of the store and Whitlow, furthermore, pointed out the automobile he saw the defendants enter. After approaching the parked vehicle and arresting defendants sitting therein, a routine search disclosed the presence of a revolver and various items of clothing. A search of Calhoun's person also revealed a sizeable amount of cash.

At the trial, testimony was offered by defendants which purported to show that one 'Billy' had advised the defendants that he knew where the purchase of clothing could be very advantageously made. Acting upon thin information, Covington, it was claimed had accompanied 'Billy' into the store where he (Billy) produced a revolver and compelled Covington's participation in the robbery. Except for a brief period during which growing impatience led him to leave the automobile temporarily, Calhoun supposedly remained in the car awaiting their return. About an hour before the robbery, of ticketing the automobile. This was the of ticketing the automobile. This was the same officer who later made the arrest.

As his first assignment of error, Calhoun claims that an inadequate amount of time spent in consultation led to his appointed counsel's failure to learn of the ticketing episode before it was brought out on cross-examination by the prosecuting attorney. The ticket (or more accurately a copy thereof) was admitted without objection as defendant's Exhibit #1.

The precise error alleged is, and we quote appellant's brief:

'This evidence (the parking ticket) was not developed further. Obviously defense counsel had given no thought to its implications. Defendants' version of the facts was that he was outside of the clothing store waiting for the other two men who, unknown to him were perpetrating the robbery. In such situation the actions of the defendant, along with any evidence to verify his story would be critical.'

We profess to no occult powers in fathoming the mental processes of the trier of the facts, in this case the trial judge, but it is difficult for us with our limited insight to see low the fact that this defendant saw an officer ticketing the car of which he and the other defendant were occupants when arrested, and in which was found some of the clothing taken from the store at gun point, would help his case. The ticketing occurred, according to defendant, 'about an hour' Before the arrest. The car was in the same place as before the ticket was issued. We can easily visualize defense counsel asking himself how many more nails he should drive into his client's defense casket by 'developing the evidence further.' We find no merit whatsoever in the claimed error.

The second error assigned is the trial judge's sustaining an objection to the following question and his stated reasons therefor. The question was posed by defense counsel in an apparent attempt to discredit the identification by the store owner.

'Q. Did you ever say hello to someone, then find out it wasn't the person you thought it was?

'Mr. Lauck (prosecuting attorney): I'm going to object to that, Your Honor. That's so vague I don't understand it myself.

'Mr. O'Connell (defense counsel): It's not vague.

'Mr. Lauck: And it's immaterial, as well, and merely conjectural.

'The Court: I sustain the objection.

'Mr. O'Connell: That would go to the question of his ability to identify, Your Honor.

'The Court: I sustain the objection.'

Read alone, and out of context with the rest of the examination, the quoted excerpt might have given us pause. Reference to the whole transcript of testimony concerning the identification establishes that the storekeeper's identification was totally unequivocal.

He testified he could see under the tape which the perpetrators of the holdup placed over his eyes and that he watched them remove the clothes from the racks and cases.

It is well...