People v. Scott
| Citation | 23 Mich.App. 568,179 N.W.2d 255 |
| Decision Date | 30 April 1970 |
| Docket Number | Docket Nos. 7252,7357,No. 2,7257,2 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph X. SCOTT (7252), John Purdy (7252), Charles R. Lohn (7357), Defendants-Appellants |
| Court | Court of Appeal of Michigan — District of US |
Robert E. Hader, Neale, Steeh & Hader, Mt. Clemens, for Joseph X. scott.
Max D. McCullough, Nicoletti & McCullough, Mt. Clemens, for John Purdy.
Roland L. Olzark, Southfield, for Charles R. Lohn.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., George N. Parris, Pros. Atty., Thaddeus F. Hamera, Chief Appellate Lawyer, Don L. Milbourn, Asst. Pros. Atty., for appellee.
Before R. B. BURNS, P.J., and FITZGERALD and VAN DOMELEN, * JJ.
The three defendants were convicted in Macomb County Circuit Court of the 1968 armed robbery of a bar. M.C.L.A. § 750.529 (Stat.Ann.1970 Cum.Supp. § 28.797). They raise several issues which we will treat seriatim.
The major error that all three rely on is a jail confrontation with the victim and an eye-witness that clearly violated their due process safeguards. 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; People v. Hutton (1970), 21 Mich.App. 312, 175 N.W.2d 860. When the witnesses' identifications become thus tainted, it is the prosecutor's duty to prove that their in-court identifications were based on sources independent of the illegal confrontation. People v. Young (1970), 21 Mich.App. 684, 176 N.W.2d 420. We believe that the prosecutor has made a sufficient showing in this case for us to conclude that the in-court identifications were independently-based.
All three defendants argue that the Macomb County sheriff's deputies did not have probable cause to arrest them. However, when a police officer has been transmitted details of a robbery including a description of the perpetrators, we believe he has probable cause to arrest individuals matching that description traveling on a possible escape route from the scene of the crime minutes thereafter. M.C.L.A. § 764.15 (Stat.Ann.1954 Rev. § 28.874); People v. Wolfe (1967), 5 Mich.App. 543, 147 N.W.2d 447; People v. Wilson (1967), 8 Mich.App. 651, 155 N.W.2d 210; People v. Beauregard (1970), 21 Mich.App. 224, 175 N.W.2d 301.
Defendants Purdy and Lohn assert error by the trial court in admitting into evidence certain exhibits which they allege had not been sufficiently connected with the crime. The record reveals identification substantial enough to allow them to be admitted into evidence. People v. Crawford (1969), 16 Mich.App. 92, 167 N.W.2d 814.
Defendant Purdy claims his right to a fair trial was prejudiced by a witness' display of an article not introduced into evidence. That transcript however, reveals that the action of the witness was entirely spontaneous and in no way caused by the prosecutor. The trial court's instruction to the jury to disregard it cured any error. People v. Wolke (1968), 10 Mich.App. 582, 159 N.W.2d 882.
Defendant Lohn argues that the trial court abused its discretion under M.C.L.A. § 768.5 (Stat.Ann.1954 Rev. § 28.1028) in not granting his motion for a separate trial. Since the facts of the crime, the witnesses, and the defenses were identical for all three defendants, the trial court did not abuse its discretion in requiring them to stand trial together. People v. Schram (1966), 378 Mich. 145, 142 N.W.2d 662. Association with co-defendants at trial, by itself, is not enough to demonstrate prejudice to defendant's right to a fair trial. People v. Mullane (1931), 256 Mich. 54, 239 N.W. 282.
The defendants raise additional alleged errors in the conduct of their trial which were not properly preserved for appeal. We will not entertain issues raised for the first time on appeal unless a clear injustice is demonstrated. People v. Smith (1969), 20 Mich.App. 243, 174 N.W.2d 22; ...
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