People v. Morgan, Docket No. 7558

• Decision Date: 25 June 1970
• Docket Number: Docket No. 7558,No. 1,1
• Citation: 24 Mich.App. 660,180 N.W.2d 842
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Leroy MORGAN, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 842

180 N.W.2d 842

24 Mich.App. 660

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Leroy MORGAN, Defendant-Appellant.

Docket No. 7558.

Court of Appeals of Michigan, Division No. 1.

June 25, 1970.

Released for Publication Nov. 9, 1970.

Stephen M. Losh, Losh, Losh & Taylor, Detroit, for defendant-appellant.

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

Before LESINSKI, C.J., and QUINN and O'HARA, ^* JJ.

LESINSKI, Chief Judge.

On December 12, 1967, a Montgomery Ward private security officer observed Leroy Morgan and a female accomplice approach the sweater counter in the Livonia Ward store, place two sweaters in a bag, and leave without paying. The guard called a fellow officer and followed defendant and the girl outside. The first officer testified that she stopped the pair and accused them of taking some merchandise without paying. Defendant replied, 'Yes.' The pair were taken to the store security office and questioned about the crime. The defendant stated that the girl was pregnant and that he took the sweaters to sell to obtain food money. The Livonia police were called and arrested the two persons. After trial by jury the defendant was convicted of larceny in a building ¹ and sentenced to a prison term of three to four years. ² He appeals as of right.

At the outset we note that no objections were raised below concerning the issues raised on appeal. While, as a general rule, this Court will not review matters not properly preserved for review, we will, in the exercise of our discretion, search the record to determine whether the errors indicate manifest injustice depriving defendant of a fair trial. People v. Reynold (1969), 20 Mich.App. 397, 174 N.W.2d 25; People v Owens (1968), 13 Mich.App. 469, 164 N.W.2d 712; People v. Willis (1965), 1 Mich.App. 428, 136 N.W.2d 723. See, also, People v. Kelsey (1942), 303 Mich. 715, 7 N.W.2d 120.

The first allegation of error concerns the security officer's testimony relating to defendant's statement in the security office. Defendant argues that the statement was inadmissible because the officer failed to advise defendant of his constitutional rights, before interrogation, as required by Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. Defendant correctly recognizes that this Court discussed this issue in People v. Omell (1968), 15 Mich.App. 154, 166 N.W.2d 279, where we held that 'a private investigator is not an officer of the law in such capacity that he is required to render a constitutional warning precedent to the taking of a statement in the nature of a confession.' However, defendant attempts to distinguish Omell on the grounds that the security officers here were acting 'in concert with the police' while in Omell they were not. We disagree. In Omell the officers, private detectives hired by defendant's employer to investigate possible embezzlement, suspected defendant of wrongdoing, confronted him at his office, and persuaded him to write a letter to his employer admitting wrongdoing. We discern no practical difference between the facts of Omell and the facts of the instant case. Omell controls.

Defendant's second allegation of error is that the prosecutor's remarks during closing argument violated defendant's right against self-incrimination. The prosecutor stated first that '(w)e have uncontroverted evidence here on the stand, and I want to emphasize 'unconstroverted evidence,' that the defendant here went into the store with a female friend.' Again in rebuttal the prosecutor said: 'Now, as I told you before, there is uncontroverted evidence here. The case is that simple. There is no defensive testimony here showing otherwise than what had occurred.' Defendant argues that the statements concerning 'uncontroverted evidence' were made for the purpose of emphasizing to the jury that defendant failed to take the stand and controvert the evidence against him. ³ This issue was decided adversely to defendant in People v. Alexander (1969), 17 Mich.App. 497, 169 N.W.2d 652. See, also, United States ex rel. Leak v. Follette (CA 2, 1969), 418 F.2d 1266, where the court per Friendly, J., held similar remarks permissible:

'Neither the language, the history, nor the policy of the self-incrimination clause affords support for the surprising proposition that in declaring that no person 'shall be compelled in any criminal case to be a witness against himself,' the authors of the Bill of Rights intended to prohibit proper advocacy concerning the strength of the prosecution's case.

'We would not want this opinion to be taken as issuing any roving commission to prosecutors. Inflections and gestures may have an effect the cold record cannot convey, and trial judges must be alert to prevent abuses of that sort. We hold only that where the prosecutor confines himself to arguing the strength of his case by stressing the credibility and lack of contradiction of his witnesses, we will not be astute to find in this a veiled comment on the defendant's failure to testify even if in practical fact, although not in theory, no one else could controvert them.'

Defendant's third allegation of error concerns the failure of the prosecution to call, as a Res gestae witness, the defendant's female accomplice. Although the prosecutor is under a general obligation to indorse on the information and call as witnesses All noncumulative Res gestae witnesses, this duty does Not extend to the calling of Accomplices. People...