People v. LaTeur

• Decision Date: 24 April 1972
• Docket Number: 9727,Docket Nos. 9576,No. 1,1
• Citation: 39 Mich.App. 700,198 N.W.2d 727
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Arthur Howard LaTEUR and Eugene Robert Hobart, Defendants-Appellants
• Court: Court of Appeal of Michigan — District of US

Page 727

198 N.W.2d 727

39 Mich.App. 700

PEOPLE of the State of Michigan, Plaintiff-Appellee, v.Arthur Howard LaTEUR and Eugene Robert Hobart, Defendants-Appellants.

Docket Nos. 9576, 9727.

Court of Appeals of Michigan, Division No. 1.

April 24, 1972.

Released for Publication June 30, 1972.

James A. Sullivan, Detroit, for LaTeur.

Robert S. Wisok, Detroit, for Hobart.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol.Gen., William L. Cahalan, Pros.Atty., Dominick R. Carnovale, Chief, Appellate Div., Thomas M. Khalil, Asst. Pros.Atty., for plaintiff-appellee.

Before R. B. BURNS, P.J., and HOLBROOK and QUINN, JJ.

R. B. BURNS, Presiding Judge.

Defendants were convicted by a jury of armed robbery.¹

Approximately 12 hours after the robbery had taken place the defendants were arrested and their vehicles searched.A warrantless arrest and search must be supported by 'probable cause.'²The existence of probable cause depends upon the facts and 'peculiar circumstances confronting the arresting officer.'People v. Harper, 365 Mich. 494, 501, 113 N.W.2d 808, 811(1962).See alsoPeople v. Surles, 29 Mich.App. 132, 135, 185 N.W.2d 126(1970).The peculiar circumstances confronting the arresting officers in this case are, the defendants allege, insufficient to establish probable cause.

We have reviewed the testimony and find the circumstances confronting the arresting officers prior to the arrests were more than adequate to support probable cause to arrest.Prior to defendants' arrests, the police knew that the Cadillac driven by defendant LaTeur was often seen in the same vicinity as the Chevrolet driven by defendant Hobart.The police were informed that the Chevrolet was stolen and that the Cadillac's registration was fraudulent.The police had the descriptions of the holdup men and their vehicle.The defendants resembled the descriptions given of the holdup men and the vehicle description matched the Chevrolet driven by Hobart.In addition the police observed items being taken from the Chevrolet and placed in the Cadillac's trunk immediately prior to the arrests.A man of 'reasonable prudence and caution' would determine that the arrestees had committed a felony.People v. Harper, Supra, 365 Mich. p. 501, 113 N.W.2d 808.

The subsequent search of defendants and the automobiles in their immediate possession was also proper.Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419(1970);People v. Wenrich, 31 Mich.App. 644, 188 N.W.2d 102(1971);People v. Miller, 26 Mich.App. 665, 182 N.W.2d 772(1970).

During the course of trial, a revolver, a pair of handcuffs, and an attache case were introduced into evidence.All three items had been seized from the defendants' possession at the time of their arrests.Prosecutorial disclosure of these items, defendants claim, was prejudicial and, given their irrelevancy, reversible error.We cannot agree with this assertion.The sole eyewitness to the robbery was handcuffed to a laundry tub in the basement of the home and although the revolver was not identified as being involved in the crime, a pistol was used by at least one of the defendants.The possession of articles necessary to commit the crime has probative value and the articles are admissible when sufficiently connected with the accused.People v. Gregory, 130 Mich. 522, 90 N.W. 414(1902);People v. Mason, 29 Mich.App. 613, 185 N.W.2d 822(1971);People v. Kerridge, 20 Mich.App. 184, 173 N.W.2d 789(1969).See alsoBanning v. United States, 130 F.2d 330(CA6, 1942)cert. den., 317 U.S. 695, 63 S.Ct 434, 87 L.Ed. 556(1943), andUnited States v. Ramey, 414 F.2d 792(CA5, 1969).The attache case was mentioned only because it contained the handcuffs.We do not consider its introduction prejudicial.

Defendants' arguments on lack of counsel at the pretrial lineup assume a fact clearly contradicted by the record on appeal.Defendants were represented by counsel at the lineup.

Defendants cite no authority for their proposition that a judge must inform a criminal defendant who is standing trial that he has a right to take the stand and testify in his own behalf.Indeed, there is none, and we see no compelling reason to provide any.The defendants were well represented by their attorneys at trial level.The decision to testify or not should be made by the defendant and his counsel, and counsel, we must presume, is well aware of his defendant's right to testify.

Were defendants denied their constitutional rights to a speedy and proper appeal?A six-to-eight month delay in the appeals of defendants' cases resulted when the court reporter failed to supply a complete transcript of the trial proceedings.Eventually defendants' appellate counsel were provided with the full transcript.

The 'procedural detour' encountered by defendants does not necessitate a new trial.People v. Gorka, 381 Mich. 515, 520, 164 N.W.2d 30(1969).We are not constitutionally compelled to free defendants from custody.³As was stated in People v. Lorraine, 34 Mich.App. 121, 122, 190 N.W.2d 746(1971), 'The remedy for dilatory review is review itself.'

Defendants raise the following five questions in connection with the jury instructions:

(1) Did the trial court err in failing to instruct the jury on the lesser included offenses of larceny and various types of assault?

(2) Did the trial court err in failing to define 'larceny', and essential element of armed robbery?

(3) Did the trial court err in giving an instruction on aiding and abetting?

(4) Was it error for the trial court Sua sponte to instruct the jury on the failure of defendants to take the stand?

(5) Did the trial court err when it failed to provide defendants an opportunity to object to the jury instructions?

We resolve these issues in the same order they appeared.

1.The right to instructions on lesser included offenses depends upon the evidence.People v. Williams, 14 Mich.App. 186, 165 N.W.2d 296(1968).A total lack of evidence to support the theory of a lesser included offense justifies a court's refusal to so instruct.People v. Reaves, 21 Mich.App. 153, 175 N.W.2d 46(1970);People v. Martin #1, 21 Mich.App. 207, 175 N.W.2d 320(1970).In this case undisputed testimony established that the robbers who took the goods were armed with a dangerous weapon, thus the sole question was whether defendants were the armed robbers.SeePeople v. Kolodzieski, 237 Mich. 654, 212 N.W. 958(1927).

2.Larceny is one of the essential elements of an armed robbery charge.⁴People v. Needham, 8 Mich.App. 679, 155 N.W.2d 267(1967).The statutory offense of larceny ⁵ is defined as stealing property belonging to another.People v. Anderson7 Mich.App. 513, 152 N.W.2d 40(1967);People v. Calvin, 60 Mich. 113, 26 N.W. 851(1886).The court instructed the jury that an armed robbery conviction must be predicated upon a finding, among other things, that the accused stole property belonging to another.The instructions sufficiently informed the jury as to the element of larceny.

3.Unlike defendants' cited case of People v. Ware, 12 Mich.App. 512, 516, 163 N.W.2d 250(1968), there was 'substantive proof to justify' the additional theory of aiding and abetting.By statute every person who 'procures, counsels, aids, or abets' in an act constituting a criminal offense is guilty as a principal.⁶Thus, even though only one of the defendants was seen holding a dangerous weapon, both defendants could be found guilty of 'armed' robbery under this statute.In People v. Dawson, 32 Mich.App. 336, 188 N.W.2d 676(1971), evidence indicated two men were acting together in committing the crime.In Dawson, as in this case, the aiding and abetting instructions were proper.

4.The trial court instructed:

'Now, in this casethe defendants have not taken the stand.Under our law the defendants may take the stand or elect not to do so.When they do not take the stand in their own behalf, counsel has no right to comment on it, nor has the court any right to comment about it, and you have no right to take that into consideration in any manner in arriving at your verdict.It is their right to take the stand, or they may elect not to do so, as they shall choose and you are not in any sense to construe that against them.'

The instruction was unobjected-to and not prejudicial.It has been previously held by this Court that such an instruction is not error.People v. Thomas, 27 Mich.App. 637, 183 N.W.2d 860(1970);People v. Hill, 27 Mich.App. 322, 183 N.W.2d 396(1970);People v. Carter, 28 Mich.App. 83, 184 N.W.2d 373(1970);People v. Abernathy, 29 Mich.App. 558, 185 N.W.2d 634(1971);People v. Labadie, 30 Mich.App. 393, 186 N.W.2d 47(1971).We should also note that the preferred words of 'election' and 'choice' instead of 'failure' to take the stand were utilized by the trial court.SeePeople v. Henry, 37 Mich.App. 160, 194 N.W.2d 456.

5.The record on appeal does not disclose whether or not the trial judge gave, as GCR...