People v. Miller

• Court: Court of Appeal of Michigan
• Writing for the Court: PER CURIAM
• Citation: People v. Miller, 174 N.W.2d 868, 21 Mich.App. 113 (Mich. App. 1970)
• Decision Date: 26 January 1970
• Docket Number: No. 1,Docket No. 5852,1
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Craig MILLER, Defendant-Appellant

Page 868

174 N.W.2d 868

21 Mich.App. 113

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Craig MILLER, Defendant-Appellant.

Docket No. 5852.

Court of Appeals of Michigan, Division No. 1.

Jan. 26, 1970.

Released for Publication March 17, 1970.

Carl Levin and Arthur J. Tarnow, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Solicitor Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Arthur N. Bishop, Asst. Pros. Atty., Wayne County, for plaintiff-appellee.

Before DANHOF, P.J., and McGREGOR and QUINN, JJ.

PER CURIAM.

This cas is submitted on the people's motion to dismiss or affirm, properly a motion to affirm under GCR 1963, 817.5(3).

Defendant was tried and convicted of breaking and entering (M.C.L.A. § 750.110 (Stat.Ann.1968 Cum.Supp. § 28.305) by Recorder's Judge George W. Crockett, Jr., sitting without a jury, and was sentenced to serve to 15 years in prison. On appeal, defendant raises three claims of error.

First, defendant claims the court erred in denying his request to dismiss his appointed counsel without ordering, Sua sponte, a separate hearing into the effectiveness of counsel. While defendant may have been dissatisfied with his appointed counsel, he failed to avail himself of the opportunity to obtain retained counsel. No other attorney was ready or even named to undertake defendant's cause. In People v. Stinson (1967), Mich.App. 648, 150 N.W.2d 171, this Court held that a denial of defendant's request for a continuance to enable defendant to obtain his own counsel was not error. As in the instant case, the defendant in Stinson was dissatisfied with his appointed counsel and sought an adjournment at the outset of the trial to obtain other counsel. See also People v. Edwards (1969), 18 Mich.App. 526, 171 N.W.2d 592.

Second, defendant claims he was deprived of his right to a fair and impartial trial when the trial judge, sitting as the trier of fact, failed to disquality himself, Sua sponte, after indicating his disbelief in defendant's claims in support of his request to dismiss counsel. An examination of the record reveals no request to disqualify the judge; on the contrary, the record reflects defendant's desire for the same judge to hear the case when he stated: 'I want for you to hear it.' Under these circumstances and in the absence of any request at trial, this question is not preserved for appellate review. People v. Piotrowski (1966), 4 Mich.App. 510, 145 N.W.2d 281. See also People v. Miller (1922), 217 Mich. 635, 187 N.W. 366 and People v. Turner (1952), 333 Mich. 547, 53 N.W.2d 372.

Third, defendant claims the court erred in failing to declare, Sua sponte, a mistrial when a witness testified to overhearing certain statements of defendant's accomplice implicating defendant. The argument, based upon Bruton v. United States (1968), 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, lacks merit. An examination of the transcript...