People v. Kaczor
| Decision Date | 19 December 1968 |
| Docket Number | No. 1,Docket No. 4065,1 |
| Citation | 165 N.W.2d 899,14 Mich.App. 724 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Fred Anthony KACZOR, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
Louis Rosenzweig, Detroit, for appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, William L. Cahalan, Pros. Atty., Samuel J. Torina, Chief Appellate Lawyer, Angelo A. Pentolino, Asst. Pros. Atty., Wayne County, Detroit, for appellee.
Before T. G. KAVANAGH, P.J., and LEVIN and NEWBLATT *, JJ.
The defendant was convicted of robbery unarmed after trial by a court without a jury. 1 On appeal, three specific complaints of error are urged and one general complaint. First, defendant complains that he was denied his constitutional right to counsel at the police line-up where he was identified by the complainant and the complainant's wife. The line-up took place on June 6, 1966. Inasmuch as United States v. Wade (1967), 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, was given only prospective effect in Stovall v. Denno (1967), 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, the defendant can claim no benefit from Wade for line-ups occurring before June 12, 1967.
Defendant further contends that his right to due process was denied under a claimed exception to the Stovall rule based upon the dangers and unfairness inherent in confrontations for identifications without benefit of counsel. This contention must also be rejected for there is no such exception to the Stovall rule. It always remains open to all persons be show that the confrontation resulted from or in such unfairness that it infringed his right to due process. This is a recognized ground for attack upon conviction independent of any right to counsel claim. A claimed violation of due process in the conduct of a confrontation depends upon the totality of the circumstances surrounding it. From this totality in a particular case the court can determine whether the proceedings comport with the decency, fairness and fundamental justice necessary to afford due process to an accused. The record in the present case fails to support a claim of a denial of due process in the confrontation here involved.
The failure to file a notice of alibi by defendant's counsel and an alleged refusal by counsel to present an alibi defense is next urged by defendant as a ground for a new trial. This can afford no basis for reversal for several reasons: (1) No offer of an alibi witness was made at the trial and rejected and hence no error can be predicated upon the failure to file a notice of alibi; (2) The preliminary examination was specifically adjourned so that the defendant could present the possible alibi witness whose existence had been called to the court's attention--at the rescheduled examination, the witness was not presented and the defense did not pursue the matter further; (3) At the time of the sentence, the defendant stated: 'I also wish to bring to this court's attention that we had a belligerent witness that could not substantiate my whereabouts on the alleged night.'
In making this claim, defenda...
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