People v. Rowls, Docket Nos. 7421

• Decision Date: 30 November 1970
• Docket Number: Docket Nos. 7421,7433 and 7677,No. 2,2
• Citation: 184 N.W.2d 332,28 Mich.App. 190
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Oscar ROWLS, Jr., Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Fred DOWELL, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kenneth Rae MARSHALL, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 332

184 N.W.2d 332

28 Mich.App. 190

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Oscar ROWLS, Jr., Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Fred DOWELL, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kenneth Rae MARSHALL, Defendant-Appellant.

Docket Nos. 7421, 7433 and 7677.

Court of Appeals of Michigan, Division No. 2.

Nov. 30, 1970.

Leave to Appeal Denied in No. 7433 Feb. 19, 1971.

Released for Publication March 4, 1971.

Leave to Appeal Denied in No. 7677 April 21, 1971.

Kurzman & Leitman, Bruce T. Leitman, Pontiac, for Oscar Rowls, jr.

Douglas A. Chartrand, Pontiac, for Fred Dowell.

John T. Connolly, Flint, for Kenneth Rae Marshall.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert F. Leonard, Pros. Atty., Donald A. Kuebler, Chief Asst. Pros. Atty., for plaintiff-appellee.

Before QUINN, P.J., and V. J. BRENNAN and ZIEM, ^* JJ.

V. J. BRENNAN, Judge.

Defendants were convicted upon a jury verdict of armed robbery ¹ and sentenced to life imprisonment. Each defendant appeals as of right.

On July 10, 1969, three men entered the Irvin Hirsch Jewelry Store and proceeded to walk up and down the aisles. When a salesman, Mr. Marcizewski, asked if he could help them, they didn't answer. After more looking they left. Within fifteen minutes they returned and inquired about putting a watch in lay-away. As Mr. Marcizewski was writing up a sales slip, defendant Marshall put a gun to his forehead, head, forced him to the back of the store, and hit him over the head with the gun. At about the same time defendant Rowls forced a clerk and a lady customer to the back of the store at gunpoint. The defendants then proceeded to rob the store and make their getaway. Within several hours all three defendants were arrested.

For the purposes of this appeal it is conceded by the defendants that there was sufficient evidence before a jury which, if believed, would support their convictions. They have wisely chosen to limit their arguments to alleged errors of law.

Defendants' first assignment of error is that a sentence of 'natural life' for a conviction of armed robbery is legally impermissible. On March 25, 1969, the trial judge sentenced each defendant to prison for his 'natural life.' Defendants now contend that there is a substantial difference between a sentence for 'life' and one for 'natural life.' The latter sentence, they claim, would forever prohibit a review of their files by the parole board, because the jurisdiction of the board is limited to convicts 'under sentence for life or any term of years * * *.' M.C.L.A. § 791.234 (Stat.Ann. 1970 Cum.Supp. § 28.2304). This argument is specious. The word 'natural' added to the word 'life' is mere surplusage. It is not a restriction or limitation upon the word 'life' which would make it a legally impermissible sentence. People v. Wright (1891), 89 Mich. 70, 50 N.W. 792; In re Krusiewicz (1933), 263 Mich. 74, 248 N.W. 554.

Defendants also contend that reversible error was committed in denying their requests for separate trials. Prior to trial defendant Dowell filed a motion for a separate trial which the court denied. During the trial defendants Rowls and Marshall also made unsuccessful requests for separate trials. The grounds asserted were that the joint trial seriously interfered with the right of cross-examination. The defendants now point to numerous objections by the three defense attorneys and claim that the interruptions caused by the objections impaired the right of cross-examination.

M.C.L.A. § 768.5 (Stat.Ann. 1954 Rev. § 28.1028) vests in the trial court full discretion to determine whether criminal defendants are entitled to joint or separate trials when jointly indicted for the same offense. People v. Burczyk (1944), 308 Mich. 194, 13 N.W.2d 258; People v. Cooper (1950), 326 Mich. 514, 40 N.W.2d 708. In the absence of an affirmative showing that a joint trial prejudiced substantial rights of the defendant, the determination of the trial court will not be overturned. People v. Schram (1966), 378 Mich. 145, 142 N.W.2d 662. Applying these rules to the present case, we do not find an abuse of discretion. While defendants cite examples of cross-examination interrupted by objections, they fail completely to show any substantial prejudice arising from the interruptions. It is self evident that interposition of good faith objections cannot be a basis for reversal even though they may take some of the fire out of a vigorous cross-examination. This is unavoidable. The mere fact that the number of objections multiply at a joint trial because the number of attorneys is increased cannot dictate a different result without eliminating joint trials entirely. It is not contended that the objections in the present case were either frivolous or in bad faith. Further, it does not appear that they were so frequent as to significantly impair the function and purpose of cross-examination. We find no abuse of discretion in the trial court's ruling.

Next, the defendants question the propriety of the prosecutor's argument to the jury. During his closing argument, the prosecutor stated to the jury 'What better evidence of guilt is there, * * * than trying to escape.' The defendants correctly cite People v. Cismadija (1911), 167 Mich. 210, 132 N.W. 489, for the proposition that flight may not be considered as substantive evidence of guilt. Defendants, however, failed to ask for a corrective instruction or even to object to the prosecutor's remarks.

It is well settled in the case of errors which are curable by a cautionary instruction that a conviction will not be reversed where the defendant has allowed the impact of the prosecutor's remarks to go to the jury without objection. People v. Humphreys (1970), 24 Mich.App. 411, 180 N.W.2d 328; People v. Smith (1969), 16 Mich.App. 198, 167 N.W.2d 832. Since the error here was not so prejudicial that it could not have been cured by an instruction, People v. Cipriano (1927), 238 Mich. 332, 213 N.W. 104, this assignment of error is without merit.

Defendant's fourth assignment of error is that the in-court identifications of Dowell and Marshall were the fruit of an illegal lineup. Defendants Dowell and Marshall were placed in a lineup after their arrest and were identified by the holdup victims. ² 2] Defendants now claim that the lineup was so unfair and prejudicial that it tainted the victims' in-court identifications of them. United States v. Wade (1967), 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Stovall v. Denno (1967), 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199. Unfortunately, we do not have the benefit of an evidentiary hearing determining the merits of this claim since no objection to either the lineup or the in-court identifications was made. The record shows that an attorney was present at the lineup and that all the factual circumstances constituting the claim of illegal confrontation were known to defendants in advance of trial. Despite this, the issue was never raised before or during the trial by either of the two defendants. The reasoning of this Court in People v. Childers (1969), 20 Mich.App. 639, 645, 174 N.W.2d 565, 568, is applicable here:

'It should be noted at the outset that the defendants' trial counsel, * * * may well have acquiesced to damage that can be undone only by granting a new trial. Yet, the State's interest in avoiding a new trial in such cases, to say nothing of its interest in an orderly trial without unexpected but avoidable delay, justifies the refusal by both trial and appellate courts to consider certain constitutional claims that are raised in an untimely manner. See, People v. Wilson (1967), 8 Mich.App. 651, 155 N.W.2d 210. Among...