People v. Reese

• Court: Court of Appeal of Michigan
• Writing for the Court: PER CURIAM
• Citation: People v. Reese, 184 N.W.2d 511, 28 Mich.App. 555 (Mich. App. 1970)
• Decision Date: 07 December 1970
• Docket Number: No. 1,Docket No. 8896,1
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles E. REESE, Defendant-Appellant

Page 511

184 N.W.2d 511

28 Mich.App. 555

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles E. REESE, Defendant-Appellant.

Docket No. 8896.

Court of Appeals of Michigan, Division No. 1.

Dec. 7, 1970.

Released for Publication March 15, 1971.

John F. Gilhool, Wyandotte, for defendant-appellant.

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

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

PER CURIAM.

With the assistance of court appointed trial counsel, defendant was tried by the court sitting without a jury and convicted on the charge of breaking and entering with intent to commit a felony, contrary to M.C.L.A. § 750.110 (Stat.Ann.1970 Cum.Supp. § 28.305). On December 23, 1969, he was sentenced to a term of 7 1/2 to 15 years imprisonment by Judge Cornelius J. Sullivan of the Recorder's Court. A timely petition for court appointed appellate counsel and subsequent claim of appeal presents three questions for review. First, it is contended that certain references to an out-of-court identification by the people's witness constituted reversible error. Second, it is contended that the trial judge denied defendant a fair and impartial trial by his predisposition and prejudicial sttitude. Third, it is contended that the verdict of guilty was contrary to the great weight of the evidence. The people have filed a motion to affirm the conviction.

Defendant objected to the prosecution witness' testimony regarding an out-of-court identification of the defendant at police headquarters after his arrest. It was defendant's position at the trial that the prosecution could not introduce such testimony without first demonstrating that the confrontation was not contrary to defendant's constitutional rights. The prosecution agreed with defendant's objection and asked that the testimony be stricken from the record. The court granted the people's motion. On appeal it is now contended that the in-court identification was tained by the illegal confrontation prior to trial. Defendant does not allege facts which would suggest that the pretrial confrontation was illegal, but it is contended that the lower court had an affirmative duty to review the pretrial procedure. It is true that once a claim of illegal confrontation is raised prior to or during the trial, an evidentiary hearing must be held to determine the merits of...