People v. Duerson, Docket No. 9672

• Decision Date: 26 July 1971
• Docket Number: Docket No. 9672,No. 2,2
• Citation: 35 Mich.App. 223,192 N.W.2d 309
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Milton Lee DUERSON, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 309

192 N.W.2d 309

35 Mich.App. 223

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Milton Lee DUERSON, Defendant-Appellant.

Docket No. 9672.

Court of Appeals of Michigan, Division No. 2.

July 26, 1971.

Released for Publication Dec. 21, 1971.

James L. Theophelis, Semerly & Theophelis, Lansing, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Raymond L. Scodeller, Pros. Atty., for plaintiff-appellee.

Before DANHOF, P.J., and BRONSON and O'HARA, ^* JJ.

O'HARA, Judge.

On December 9, 1969, a jury in Ingham County found the defendant guilty of armed robbery, contrary to M.C.L.A. § 750.529 (Stat.Ann.1971 Cum.Supp. § 28.797). He was sentenced to life imprisonment. He appeals of right.

Evidence presented at trial indicated that the defendant robbed the Wine Village, a business establishment located in Lansing, Michigan. He entered around 7:30 on the evening of March 4, 1969, holding three persons on the premises at gun point while removing the contents of the cash register. He then left. Apparently on more mature consideration, he decided he had not concluded his self-appointed task. He returned forthwith and forced the manager to open the safe, the contents of which he added to the loot. He then ordered everyone in the store to lie on the floor, fired his pistol at one of them to discourage any imprudent interference, and fled.

He sets forth six assignments of error.

First, he asserts that he was denied his right to an impartial jury because of the allegedly improper manner in which the jury was selected.

Acting pursuant to GCR 1963, 511.3, the trial court personally conducted the Voir dire. On occasion, the jury did not respond to questions asked. Counsel for the defendant presumably construed the silence as a negative response. In any event, he expressed satisfaction with the jury on the record. Any claimed error was waived. People v. Miron (1971), 31 Mich.App. 142, 187 N.W.2d 497; People v. Jenkins (1970), 23 Mich.App. 39, 178 N.W.2d 103.

Next, he attacks the in-court identification by prosecution witnesses as a product of an antecedent lineup which was impermissibly suggestive in that the defendant was the only party present attired in prison clothing.

The record reveals little with regard to the procedure followed at the lineup. Assuming some impropriety, it would not be a ground for reversal. Several witnesses had ample opportunity to observe defendant while the robbery was in progress. Their identification was independent of what had occurred at the lineup. People v. Wilson (1969), 20 Mich.App. 410, 174 N.W.2d 79; People v. Bratton (1969), 20 Mich.App. 523, 174 N.W.2d 297. The error, if any, was harmless.

Third, error is alleged in the admission of a black leather coat, taken from an automobile in which defendant was a passenger at the time of his arrest. It is urged that the search and seizure were not incident to a lawful arrest. The error, if any, was not preserved as required. There was ample time to have made the requisite motion to suppress in advance of trial. None was made. The issue may not be raised initially in this court. People v. Ferguson (1965), 376 Mich. 90, 135 N.W.2d 357.

Next, it is claimed that the court violated defendant's right to remain silent by admitting a 'Recognition of Rights' form, offered to him by the police, thereby calling to the jury's attention that defendant had refused to make a statement when arrested. The purpose for which the people sought to introduce the form is unclear. However, defense counsel affirmatively consented to its admission. Even then the trial judge ruled that it could not be taken to the jury room during deliberations. We perceive no prejudice. Error may not be raised for the first time on appeal, unless to avoid a clear injustice. People v. Schram (1970), 23 Mich.App. 91, 178 N.W.2d 93. This record reveals no suggestion of injustice.

Defendant next questions the sufficiency of this charge to the jury upon reasonable doubt:

'It has been said that a juror is satisfied beyond a reasonable doubt as to a matter in controversy when, after a full and fair consideration of all of the testimony given in the case, he can say that he has an abiding conviction to a moral certainty that the charge made has been established as having been committed by the accused.'

This excerpt from the charge was not over-extensive, but the situation is essentially the same as that in People v. Walsh (1970), 27 Mich.App. 100, 106, 183 N.W.2d 360, 363. There the court held:

'A careful review of the trial court's instructions as a whole convinces us that the instructions were substantially...