People v. Collins

• Decision Date: 28 March 1969
• Docket Number: No. 3,Docket No. 3880,3
• Citation: 16 Mich.App. 667,168 N.W.2d 624
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas COLLINS, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 624

168 N.W.2d 624

16 Mich.App. 667

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas COLLINS, Defendant-Appellant.

Docket No. 3880.

Court of Appeals of Michigan, Division No. 3.

March 28, 1969.

Rehearing Denied May 23, 1969.

Released for Publication July 1, 1969.

Harold M. Ryan, Detroit, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Donald A. Burge, Pros. Atty., Kalamazoo County, Kalamazoo, for appellee.

Before McGREGOR, P.J., and BURNS and DANHOF, JJ.

PER CURIAM.

Defendant's non-jury trial on a charge of rape* resulted in a conviction and sentence to life imprisonment. He appeals, raising a number of issues without substance. However, there is a certain novelty to one of the issues which causes this Court to rule specifically on it.

Defendant contends that it was highly prejudicial for the magistrate at the preliminary examination to direct him to remove his toupee.

The United States Supreme Court said in United States v. Wade (1967), 388 U.S. 218, 221--223, 87 S.Ct. 1926, 1929, 1930, 18 L.Ed.2d 1149, 1154, 1155:

'Neither the lineup itself nor anything shown by this record that Wade was required to do in the lineup violated his privilege against self-incrimination. We have only recently reaffirmed that the privilege 'protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature. * * * ' Schmerber v. California, 384 U.S. 757, 761, 86 S.Ct. 1826, 16 L.Ed.2d 908 (914). We there held that compelling a suspect to submit to a withdrawal of a sample of his blood for analysis for alcohol content and the admission in evidence of the analysis report were not compulsion to those ends. That holding was supported by the opinion in Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021 in which case a question arose as to whether a blouse belonged to the defendant. A witness testified at trial that the defendant put on the blouse and it had fit him. The defendant argued that the admission of the testimony was error because compelling him to put on the blouse was a violation of his privilege. The Court rejected the claim as 'an extravagant extension of the Fifth Amendment,' Mr. Justice Holmes saying for the Court:

'The prohibition of compelling a man in a criminal court to be witness against himself 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.' 218 U.S. at 252, 253, 31 S.Ct. at 6 (54 L.Ed. at 1029).

'We have no doubt that compelling the accused merely to exhibit his person for observation by a prosecution witness prior to trial involves no compulsion of the accused to give evidence having testimonial significance. It is compulsion of the accused to exhibit his physical characteristics, not compulsion to disclose any knowledge he might have. It is no different from compelling Schmerber to provide a blood sample or Holt to wear the blouse, and, as in those instances, is not within the cover of the privilege. Similarly, compelling Wade to speak within hearing distance of the witnesses, even to utter words purportedly uttered by the robber, was not compulsion to utter statements of a 'testimonial' nature; he was required to use his voice as an identifying physical characteristic, not to speak his guilt. We held in Schmerber, supra, 384 U.S. at 761, 86 S.Ct. at 1830 (16 L.Ed.2d at 914), that the distinction to be drawn under the Fifth Amendment privilege against self-incrimination is one between an accused's 'communications' in whatever form, vocal or physical, and 'compulsion which makes a suspect or accused the source of 'real or physical evidence," Schmerber, supra, 384 U.S. at 764, 86 S.Ct. at 1832 (16 L.Ed.2d at 916). We recognized that 'both federal and state...