People v. Samuels, Docket Nos. 19079 and 19080

• Decision Date: 23 June 1975
• Docket Number: Docket Nos. 19079 and 19080,No. 3,3
• Citation: 233 N.W.2d 520,62 Mich.App. 214
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Reginald SAMUELS, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 520

233 N.W.2d 520

62 Mich.App. 214

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Reginald SAMUELS, Defendant-Appellant.

Docket Nos. 19079 and 19080.

Court of Appeals of Michigan, Division No. 3.

June 23, 1975.

Released for Publication Oct. 6, 1975.

Pinsky & Soet by H. David Soet, Grand Rapids, for defendant-appellant.

Frank J. Kelley, Atty. Gen. Robert A. Derengoski, Sol. Gen., James K. Miller, Pros. Atty., Donald A. Johnston, III, Chief App. Asst. Pros. Atty., for plaintiff-appellee.

Before T. M. BURNS, P.J., and McGREGOR and WALSH, JJ.

T. M. BURNS, Presiding Judge.

Defendant Reginald Samuels appeals as of right from his October 30, 1973, jury convictions of assault with intent to do great bodily harm less than murder ¹ and armed robbery. ²

On February 19, 1971, defendant, then 16 years of age, surrendered himself to the Grand Rapids Police Department, Juvenile Division. He was held on charges of assault with intent to murder and armed robbery, said charges stemming from an armed robbery of a baked goods store in Grand Rapids, Michigan, on November 20, 1970, during which the store's proprietor was shot in the abdomen and seriously wounded.

On February 23, 1971, the Kent County prosecutor filed a petition for waiver of jurisdiction so that the defendant could be tried as an adult in circuit court. On March 8, 1971, a hearing was held in juvenile court, and at the close of the hearing, the court held that the interests of the defendant and the public would be best served by granting a waiver of jurisdiction to the circuit court.

On March 9, 1971, a complaint was filed charging the defendant with the two offenses previously mentioned, and defendant was bound over for trial on both counts following his March 18, 1971, preliminary examination. Following two extended periods of diagnostic commitment to the Center of Forensic Psychiatry of the Department of Mental Health, the trial court entered an order finding defendant competent to stand trial and his jury trial subsequently commenced on October 29, 1973, and concluded the following day when the jury convicted defendant of the two crimes mentioned earlier. On November 21, 1973, defendant was sentenced to life imprisonment on the armed robbery charge and received a sentence of six to ten years imprisonment on his conviction of assault with intent to do great bodily harm less than murder.

Defendant first claims on appeal that his convictions should be set aside because juvenile court jurisdiction over him was improperly waived. Defendant contends that since the statute ³ governing the procedure for waiver of jurisdiction by the probate court over a minor was declared unconstitutional in People v. Fields, 388 Mich. 66, 199 N.W.2d 217 (1972), the waiver in this case is invalid.

Defendant's argument must fail in light of our Supreme Court's promulgation of JCR 1969, 11. That court rule sets forth in detail what the juvenile court must find and the criteria on which to base those findings before it may waive jurisdiction of a juvenile to circuit court. The record before us reveals that the juvenile court judge applied the criteria set forth in JCR 1969, 11.1 before he ordered juvenile jurisdiction over this defendant waived. This Court has on various occasions distinguished between cases of waiver under the infirmed statute and cases after the adoption of the juvenile court rule in which the constitutionally acceptable standards listed therein were applied. People v. White, 51 Mich.App. 1, 214 N.W.2d 326(1973), Lv. den., 391 Mich. 819 (1974); People v. Rubin Williams, 50 Mich.App. 270, 213 N.W.2d 307 (1973); People v. Jackson, 46 Mich.App. 764, 208 N.W.2d 526 (1973). Thus, conceding the invalidity of the prior statute, a waiver of juvenile court jurisdiction pursuant to the juvenile court rule is constitutional.

Our conclusion is further buttressed by the Michigan Supreme Court's decision in its rehearing of People v. Fields (On Rehearing), 391 Mich. 206, 214, 216 N.W.2d 51, 52 (1974). There the Court emphatically stated that its holding in Fields did not affect the validity of waiver proceedings conducted pursuant to JCR 1969, 11:

'The Juvenile Court Rules of 1969 were adopted December 5, 1968 and went into effect March 1, 1969. The Juvenile Court Rules were not in effect when this case was decided by the probate judge. They have no application to the issue in this case.

'Any question pertaining to JCR 1969, 11, is not before the Court in this case since it was not in effect at the time the action of the probate judge herein reviewed took place.'

Therefore, we hold that in the case before us, jurisdiction over the defendant was constitutionally waived by the probate court's application of the standards set forth in JCR 1969, 11.1.

Defendant's second and final contention is that reversible error occurred at his jury trial because the prosecutor did not indorse upon the information the name of an alleged res gestae witness and did not produce this witness at trial.

During trial it was disclosed that the victim of the robbery saw the three men who robbed him talking to a Negro postman just prior to the time they entered his store. The postman was subsequently contacted by detectives but he was not indorsed as a witness on the information nor was he ever called as a witness.

As defendant correctly points out in his appellate brief, the identification of defendant as the perpetrator of the shooting was the primary question for jury resolution at trial. At trial, the complainant was the only person to identify defendant as his assailant. However, this identification testimony was seriously weakened on cross-examination via defense counsel's skillful use of impeachment evidence which showed that the complainant (1) had been unable to identify defendant during prior judicial proceedings; (2) had identified 'mugshots' other than defendant's; and (3) had also identified other men as participants in the robbery.

There is no showing on the record whether...