People v. Carroll

• Decision Date: 28 August 1973
• Docket Number: No. 3,Docket Nos. 14531,14854,3
• Citation: 49 Mich.App. 44,211 N.W.2d 233
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas W. CARROLL and Charles Louis Ross, Defendants-Appellants
• Court: Court of Appeal of Michigan — District of US

Page 233

211 N.W.2d 233

49 Mich.App. 44

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas W. CARROLL and Charles Louis Ross, Defendants-Appellants.

Docket Nos. 14531, 14854.

Court of Appeals of Michigan, Division No. 3.

Aug. 28, 1973.

Released for Publication Oct. 24, 1973.

James R. Neuhard, State App. Defender, Detroit, for defendants-appellants.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., E. Brady Denton, Pros. Atty., for plaintiff-appellee.

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

HOLBROOK, Presiding Judge.

Defendants were found guilty after jury trial of breaking and entering of a building with intent to commit larceny. M.C.L.A. § 750.110; M.S.A. § 28.305. The alleged crime was the breaking and entering of a building to steal snowmobiles. On May 11, 1972, defendant Ross was sentenced from 3 to 10 years in prison and on May 12, 1972, defendant Carroll was sentenced from 2 to 10 years in prison. Defendants now raise seven issues on appeal.

Defendants first claim that their arrest was made without probable cause and that, therefore, their convictions must be reversed. Defendants do not argue that any evidence obtained as a product of their alleged illegal arrest should have been suppressed at trial. Assuming Arguendo that the arrests were illegal, there is no authority for the proposition that the necessary consequence of an illegal arrest is that a defendant's subsequent conviction must be reversed. The rule, in fact, is that an unlawful arrest does not prevent the prosecution of a defendant. People v. Drummonds, 30 Mich.App. 275, 186 N.W.2d 7 (1971); People v. Miller, 235 Mich. 340, 209 N.W. 81 (1926); People v. Nawrocki, 6 Mich.App. 46, 53--54, 150 N.W.2d 516 (1967).

Defendants next claim that the trial court committed reversible error by conducting an inquiry into possible improper influences on the jury outside of the defendants' presence. On three occasions the trial judge conducted in-chambers inquiries into possible grounds for the disqualification of certain jurors. The defendants' lawyers were present at these inquiries but the defendants were not. The first inquiry occurred after the attorney for one of the defendants reported that he had observed a witness police officer in a conversation with a group of people including one prospective juror, with another prospective juror listening to the conversation. The defendants' attorneys apparently accepted the officer's explanation that the juror had not joined the conversation and that the case had not been discussed because these jurors were not challenged either for cuase or peremptorily. None of the attorneys asked that the prospective jurors be examined.

The second incident occurred shortly after opening statements when one of the jurors voluntarily indicated that he was acquainted with one of the witnesses. Again the trial judge conducted an inquiry in chambers with counsel present and again no challenge was made to the juror.

The third incident occurred during the testimony of a witness when one of the jurors realized she knew the witness's parents and so informed the court. After another in-chambers discussion the trial court excluded the juror from the jury panel upon defense counsel's request.

Defendants cite People v. Harris, 43 Mich.App. 746, 204 N.W.2d 734 (1972), and authorities noted therein for the proposition that a hearing on the issue of undue influence of a juror is a critical stage of trial at which defendant has a right to be present. This proposition has also been followed in People v. Medcoff, 344 Mich. 108, 73 N.W.2d 537 (1955); People v. Nickopoulos, 40 Mich.App. 146, 198 N.W.2d 691 (1972); People v. Palmer, 28 Mich.App. 624, 185 N.W.2d 94 (1970); People v. Fountain, 43 Mich.App. 489, 204 N.W.2d 532 (1972); People v. Bowman, 36 Mich.App. 502, 194 N.W.2d 36 (1971); People v. Brown, 37 Mich.App. 25, 194 N.W.2d 450 (1971). Accord, People v. Thomas, 46 Mich.App. 312, 208 N.W.2d 51 (1973). In Medcoff, Palmer, and Harris, both the defendant and his counsel were excluded during the trial court's inquiry into allegations of juror misconduct, and the Appellate Court found it to be reversible error. In Nickopoulos and Fountain this Court reversed and remanded for a new trial when the trial court conducted an investigation into allegations of jury tampering without the presence of either defense counsel or defendant. Contrariwise, in Bowman there was no error found when in-court and in-chambers conferences between the tiral judge and defense counsel about matters of evidence, law, and possible juror prejudice were held in the absence of the defendant and no objections were made by defense counsel to any of the proceedings. Similarly, in Brown a conference was held in chambers with defense counsel present to discuss a note from a juror to the trial judge and this Court found no error in the defendant's personal absence from the conference. We find the distinction of counsel's presence or absence among the above cases a crucial one. In the instant case defense counsel was present at all in-chambers meetings to discuss possible undue influence on the jury and at no time objected to the proceedings. Moreover, the trial judge granted the defense counsel's request to exclude a juror as a result of the third conference. We therefore find no prejudicial error in defendants' personal absence from the inquiries into juror impartiality.

In addition, defendants argue that the trial court erred in the first in-chambers inquiry in not sua sponte interviewing the jurors who allegedly overheard the conversation of the witness as described above. People v. Levey, 206 Mich. 129, 172 N.W. 427 (1919), cited by defendants as authority that the lack of such an interview is reversible error, is considerably different from this case, since in Levey the judge in a similar situation asked Only the jury foreman if another juror had been unduly influenced. Also, here both defense counsel were given the opportunity to have the jurors questioned and declined that opportunity.

The third claim made on appeal, raised by defendant Ross alone, is that his case was prejudiced because the jury saw him in a holding cell and overheard the bailiff making a phone call and telling someone to bring Ross over. Defendant cites People v. Duplissey, 380 Mich. 100, 155 N.W.2d 850 (1968), in support of his claim that prejudice against him occurred. In Duplissey, however, a defendant was handcuffed in court during trial despite the fact that he was guilty of no misconduct, though his codefendants were. There the Supreme Court found error in the denial of a separate trial for the defendant. The factual situation here is hardly as extreme as taht in Duplissey. Moreover, orderly court process often unavoidably requires use of restraints, prison garb, etc., as a matter of practical necessity and without proof of the lack of such necessity coupled with resulting prejudice we find no error. People v. Havey, 11 Mich.App. 69, 76, 160 N.W.2d 629 (1968); People v. Thomas, 1 Mich.App. 118, 126, 134 N.W.2d 352 (1965).

The fourth claim made on appeal is that it was error to deny defendants' motion for separate trials. Defendants argue that at trial a trailer license plate registered in the third defendant's name, Robert Burns, some bolt cutters, bolts, and wires, all found in the 1958 Chevrolet abandoned at the scene of the crime by the three subjects suspected of breaking and entering, were improperly admitted into evidence since this evidence was allegedly not linked with the crime and not linked with them. Moreover, they contend that because Burns took the stand on his own behalf they were faced with the choice of testifying and disclosing prior breaking and entering convictions or being confronted...