People v. Camak
Decision Date | 24 January 1967 |
Docket Number | No. 614,No. 1,614,1 |
Citation | 5 Mich.App. 655,147 N.W.2d 746 |
Parties | PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Melvin CAMAK, Defendant and Appellant. Cal |
Court | Court of Appeal of Michigan — District of US |
George Stone, Detroit, for appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Samuel H. Olsen, Pros. Atty., Wayne County, Samuel J. Torina, Chief Appellate Lawyer, Wayne County, Detroit, for appellee.
Before LESINSKI, C.J., and GILLIS and HOLBROOK, JJ.
Melvin Camak, defendant herein, and Edward Collins were charged in an information dated June 9, 1964, with the crime of robbery armed. 1 Their trial was set for September 1, 1964, before the Honorable Earl C. Pugsley, visiting judge in the recorder's court for the city of Detroit. Before commencement of the trial, Edward Collins entered a guilty plea which was duly accepted. The prosecutor then moved to add Edward Collins as a Res gestae witness for the People. Upon defense counsel's objection and request for adjournment if the motion was granted, the prosecutor withdrew his motion. The trial resulted in a verdict of guilty as charged The defendant was sentenced to 15 to 30 years in prison. Subsequently, upon request of defendant under GCR 1963, 785.4 (1) appellate counsel was appointed, and this appeal taken.
Defendant raises 8 questions for review which are here restated and discussed.
1. Was the private conversation between the judge and prosecutor prior to commencement of the trial in the sight of the defendant and counsel but out of their hearing, a denial of defendant's constitutional rights?
After acceptance of the plea of guilty from co-defendant Edward Collins, the record discloses the following, which bears upon the issue raised:
'The Court: In the case of the People vs. Melvin Camak, are the People ready?
'Mr. Eggleton: Yes, your Honor.
'The Court: Is the defendant ready?
'Mr. Henry: We are ready, your Honor.
'The Court: All right. You may call a jury.
'Court Clerk: They have gone for the jury now, your Honor.
'The Court: Mr.
Eggleton, will you approach the bench, please?
'Mr. Eggleton: Yes, sir.
'Mr. Eggleton: If it pleases the court, at this time, in the matter of the People vs. Melvin Camak, there are several persons indorsed on the information and it has been called to my attention that they could only give testimony regarding the defendant Collins, and the defendant Collins' case has been disposed of. Those persons' names are: Bruce Kennedy, right on the bottom of the list, your Honor, Bruce Kennedy, and going to the second column, starting with Thomas McGrath, Maurice Lloyd, Roger Pockey, Thomas Rassler, Donald Dwyer, James Scott and Edward Fant. Bruce Kennedy was the detective, your Honor, that held the show-up for Collins. The remaining officers participated in the arrest of Collins. Neither--none of these persons, according to the information I have received, know anything about the defendant Camak at all, and at this time we would move that these persons be deleted from the information in respect to the trial against Melvin Camak.
'Mr. Henry: We have no objection, your Honor.
'Mr. Henry: That is correct, your Honor.
'The Court: The motion is granted and these names will be stricken.'
It is evident from the foregoing that the jury was not present during this part of the proceeding nor had defendant's trial actually commenced. The attorney for defendant indicated his understanding of the purpose of the conversation by agreeing to the deletion of the names of witnesses as to Collins alone and did not raise any objections to the procedure. Although it would have been a better procedure if the defendant and his counsel had been included in the conversation, we fail to find a denial to the defendant of his right to a fair and impartial trial under the facts presented. Snyder v. Commonwealth of Massachusetts (1934), 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674; People v. Medcoff (1955) 344 Mich. 108, 73 N.W.2d 537.
2. Was the arrest of the defendant unlawful and was there an illegal search and seizure?
This issue is raised here for the first time on appeal. No objection was made on the examination, it was not raised before or during the trial, and therefore the trial court has not passed upon it. The Court of Appeals will not consider questions on appeal that were not raised in the trial court. People v. Will (1966) 3 Mich.App. 330, 142 N.W.2d 467.
3. Was the compulsory appearance of the defendant in the 'lineup', without explanation to him of his right to counsel, a denial of his constitutional rights?
Such 'lineups' have been approved in the recent case of Wade v. United States, (5 Cir. 1966), 358 F.2d 557, wherein at p. 559 it is stated:
'Appellant concedes that the courts have repeatedly held that an ordinary lineup of an accused person with others for the purpose of having them viewed by victims of the alleged crime for purposes of identification does not run afoul of the self-incrimination provisions of the Fifth Amendment. Although no Supreme Court decision on this precise point has been cited nor found by us, there is the well-known dictum of Mr. Justice Holmes in Holt v. United States (1910), 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021, where it is said that the prohibition of the Fifth Amendment 'is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material.'
Appellant herein claims that Escobedo v. State of Illinois (1964), 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, applies because at the time in question, the investigation had focused on him. He claims that he should have been advised of his right to counsel before being placed in the lineup. We do not read Escobedo, supra, as requiring a defendant to be advised of his right to counsel before he may be placed in a 'lineup.' In any event, defendant was released shortly thereafter which indicates to us that at the time of defendant being placed in the lineup the investigation had not as yet focused on him.
4. Was the trial court's failure to permit defendant to examine and explain the presentence report a denial of his constitutional rights?
The record discloses no request by defendant or his counsel of the court to examine the presentence report, and as pointed out by defendant the record fails to disclose an offer by the court to defendant to examine it at the time of sentence.
The court did, after verdict of the jury, say to defendant the following:
'Court Clerk: No, he is not, your Honor.
'Mr. Henry: No, he has been unable to make bond, your Honor.'
In a similar case, the United States Court of Appeals, First Circuit, Powers v. United States (CCA 1, 1963) 325 F.2d 666, 667 stated in part as follows:
That the trial judge may consider additional factors in determining sentence is well settled in Michigan. People v. Williams (1923), 225 Mich. 133, 195 N.W. 818; People v. Losinger (1951), 331 Mich. 490, 50 N.W.2d 137, 44 A.L.R.2d 1449; People v. Guillett (1955), 342 Mich. 1, 69 N.W.2d 140.
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