People v. Harris

• Decision Date: 06 December 1977
• Docket Number: Docket No. 29373
• Citation: 80 Mich.App. 228,263 N.W.2d 40
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Reginald HARRIS, Defendant-Appellant. 80 Mich.App. 228, 263 N.W.2d 40
• Court: Court of Appeal of Michigan — District of US

Page 40

263 N.W.2d 40

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Reginald HARRIS, Defendant-Appellant.

Docket No. 29373.

80 Mich.App. 228, 263 N.W.2d 40

Court of Appeals of Michigan.

Dec. 6, 1977.

Released for Publication March 14, 1978.

[80 MICHAPP 229] Peter C. Payette, Flint, for defendant-appellant.

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

Before MAHER, P. J., and CAVANAGH and KAUFMAN, JJ.

PER CURIAM.

A jury convicted Reginald Harris of armed robbery. M.C.L.A. § 750.529; M.S.A. § 28.797. Sentenced to a term of 40 to 50 years imprisonment, defendant appeals as of right and has filed a motion for peremptory reversal.

Defendant bases his appeal and motion on three issues. He charges that the trial court abused its discretion by ordering him removed from the courtroom during the trial because of his conduct. The issue has no merit.

In Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970), reh. den., 398 U.S. 915, 90 S.Ct. 1684, 26 L.Ed.2d 80 (1970), the Supreme Court held that a defendant can lose his right to be present at trial if, after he has been warned by the [80 MICHAPP 230] judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive and disrespectful of the court, that his trial cannot be carried on with him in the courtroom. The court stated that "trial judges confronted with disruptive, contumacious, stubbornly defiant defendants must be given sufficient discretion to meet the circumstances of each case." 397 U.S. at 343, 90 S.Ct. at 1061.

An examination of the record in the instant case unfolds a course of conduct during trial nothing short of an affront to the court. Defendant repeatedly interrupted the trial with his willful and disorderly behavior, making it impossible to carry on the proceedings in his presence. The judge warned defendant of the consequences of his actions and gave him the opportunity, after ordering him removed from the courtroom, to reclaim the right to be present on condition that he conduct himself in a manner consistent with the decorum and respect inherent in the concept of courts and judicial proceedings. Defendant chose not to take advantage of the opportunity, maintaining his refractory attitude and acting belligerently. The trial judge acted within the proper scope of discretion in removing defendant from the proceedings.

Defendant also claims he was denied his right to a fair and impartial trial because he was tried in jail clothing. However, to preserve the issue for appellate review, objection must be made before the jury is empaneled. Failure to object in timely fashion waives any defects as to defendant's appearance before the jury. People v. Shaw, 381 Mich. 467, 164 N.W.2d 7 (1969); People v. Woods, 32 Mich.App. 358, 188 N.W.2d 649 (1971). In the instant case, no objection was made until after the jury was empaneled.

[80 MICHAPP 231] Moreover, according to defendant's trial attorney, he and his client had discussed the matter of clothing. Defendant had told his attorney he owned no civilian clothing and that even if he did, he preferred to wear the clothes in which he was, in fact, tried. A prisoner who voluntarily chooses to stand trial in jail clothing cannot be heard to complain on appeal. United States v. Williams, 498 F.2d 547 (CA 10, 1974); State v. Hall, 220 Kan. 712, 556 P.2d 413 (1976). Defendant is barred from claiming error.

Finally, defendant contends that the trial court, by imposing a 40 to 50 year sentence, transgressed the limitations set out by the Supreme Court in People v. Tanner, 387 Mich. 683, 199 N.W.2d 202 (1972). We agree.

Tanner construed the indeterminate sentence statute, M.C.L.A. § 769.8; M.S.A. § 28.1080, which states:

"When any person shall hereafter be convicted for the first time of crime committed after this act takes effect, the punishment for which prescribed by law may be imprisonment in the state prison at Jackson, the Michigan reformatory at Ionia, the state house of correction and branch of the state prison in the upper peninsula, the Detroit house of correction, or any other prison, the court imposing sentence shall not fix a definite term of imprisonment, but shall fix a minimum term except as hereinafter provided. The maximum penalty provided by law shall be the maximum sentence in all cases except as herein provided and shall be stated by the judge in passing sentence. He shall before or at the time of passing such sentence ascertain by examination of such convict on oath, or otherwise, and by such other evidence as can be obtained tending to indicate briefly the causes of the criminal...