People v. Griffin

• Decision Date: 18 May 1971
• Docket Number: Docket No. 9007,No. 3,3
• Citation: 190 N.W.2d 266,33 Mich.App. 474
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James Edgar GRIFFIN, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 266

190 N.W.2d 266

33 Mich.App. 474

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James Edgar GRIFFIN, Defendant-Appellant.

Docket No. 9007.

Court of Appeals of Michigan, Division No. 3.

May 18, 1971.

Leave to Appeal Denied Aug. 3, 1971.

Released for Publication Oct. 7, 1971.

John R. DeVries, Manistee, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert D. Andrews, Pros. Atty., for plaintiff-appellee.

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

O'HARA, Judge.

Defendant was convicted of felony-murder following a trial by the court. M.C.L.A. § 750.316 (Stat.Ann.1971 Cum.Supp. § 28.548).

On this appeal by leave granted, counsel for defendant raises several assignments of error which he candidly admits were not timely raised below.

Initially, defendant asserts that he could not have been legally taken into custody by arresting officers because of the lack of probable cause.

Under applicable law, a peace officer may arrest without a warrant any person whom he suspects, on reasonable grounds, of having committed a felony when he has reasonable cause to believe that a felony has been committed. People v. Panknin (1966), 4 Mich.App. 19, 143 N.W.2d 806; M.C.L.A. § 764.15 (Stat.Ann.1954 Rev. § 28.874). While the officer may not arrest on mere suspicion, he may act upon information which would justify a reasonable man acting thereon.

In the present case, two citizens presented to the officers the underlying facts and circumstances from which they had drawn the inference that defendant had committed a homicide. Statements had been made in the presence of the informers by defendant that he believed he had killed someone. Mute testimony to the likelihood of this being true existed in the form of defendant's disheveled appearance and bloodstained clothing. On further investigation, other witnesses were discovered who amply corroborated the facts hereinbefore detailed. Arresting officers also observed the bloodstained trousers and the cut over defendant's eye. Given these facts, the officers could infer from the information on hand the commission of a crime by defendant and, hence, take him into custody.

In any event since the question of probable cause does not go to the merits of the case, once defendant has gone to trial it is to late to question the legality of the arrest initially on appeal. People v. Teal (1969), 20 Mich.App. 176, 173 N.W.2d 736; People v. Camak (1967), 5 Mich.App. 655, 147 N.W.2d 746.

As his second assignment of error, defendant alleges that he was denied the effective assistance of counsel at various stages of the proceedings antecedent to trial, which he characterizes as critical: at the time he was incarcerated, at the time his clothing was removed for investigatory purposes, and at the arraignment.

Defendant's counsel, Mr. Lyman, the attorney whom defendant and his family requested to be appointed, was present at the trial and the preliminary examination. Although counsel was not present at the arraignment and defendant claims that his constitutional rights were violated thereby, it is the settled law in Michigan that an arraignment does not constitute a critical stage of the proceedings. Nor are there any indications that the particular circumstances herein rendered the proceeding critical, I.e., defendant did not enter a plea or otherwise make any statement. People v. Sullivan (1969), 18 Mich.App. 1, 170 N.W.2d 514. Similarly, according to the jurisprudence of this state, incarceration and the taking of clothing for purposes of investigation are not critical stages requiring assistance of counsel. People v. Trudeau (1970), 22 Mich.App. 246, 177 N.W.2d 171.

Next, allegations are made that an unnecessary delay in taking defendant before a magistrate subsequent to his arrest prejudicially affected defendant's rights by allowing the police time to remove defendant's clothing and to otherwise gather evidence.

According to the undisputed facts, the arrest occurred on Saturday, August 26, 1967, at 7:27 p.m. On the following Monday, August 28, the arraignment took place before a magistrate. Defendant does not allege that he was subjected to questioning or that he made a confession during his incarceration. See People v. Hamilton (1960), 359 Mich. 410, 102 N.W.2d 738. Objections are made to the normal procedure followed by police in cases where they seize blood-soaked clothing from a prisoner charged with a crime of violence. We perceive nothing unreasonable about the police removing clothing in plain view under such circumstances. People v. Clark (1967), 5 Mich.App. 672, 147 N.W.2d 704. Where there is a delay of two days in bringing an accused before a magistrate, but neither a confession nor inculpatory statements are obtained in the meantime, defendant is not thereby entitled to a dismissal of the prosecution. People v. Nawrocki (1967), 6 Mich.App. 46, 150 N.W.2d 516.

Lastly, defe...