People v. Spencer, Docket No. 20159

• Decision Date: 29 May 1975
• Docket Number: Docket No. 20159,No. 3,3
• Citation: 232 N.W.2d 413,61 Mich.App. 392
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Melvin William SPENCER and Wendell James Nash, Defendants-Appellants
• Court: Court of Appeal of Michigan — District of US

Page 413

232 N.W.2d 413

61 Mich.App. 392

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Melvin William SPENCER and Wendell James Nash, Defendants-Appellants.

Docket No. 20159.

Court of Appeals of Michigan, Division No. 3.

May 29, 1975.

Released for Publication Sept. 9, 1975.

Murphy, Neff, Burns & McInerney by William B. Murphy, Grand Rapids, for defendants-appellants.

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

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

T. M. BURNS, Presiding Justice.

Defendants Melvin William Spencer and Wendell James Nash were charged with concealing stolen property contrary to M.C.L.A. § 750.535; M.S.A. § 28.803, as amended by 1974 P.A. 55. They were tried before a jury on January 30, 1974, and found guilty as charged. On March 25, 1974, they were sentenced to 18 months to 15 years in prison. They now appeal as of right.

On the evening of October 18, 1973, the apartment of three Grand Rapids college students was burglarized. One of the students, Kenneth Huizenga, was at home at the time and frightened the burglars off, but not before they escaped with a television set and some stereo equipment. Shortly thereafter defendants and two others came to the door of the apartment and told Huizenga that they knew the whereabouts of the stereo equipment and could help return it. The goods were in fact returned early the next morning.

The major factual dispute at trial centered around whether the defendants returned the stolen goods and were given a reward, as defendants claim, or whether the defendants demanded either marijuana or a cash payment before they would return the goods, as the students claim. Both sides acknowledge that the owner of the stereo equipment, David Den Boer, drove to several locations in the middle of the night attempting to cash a check for $50, that he was unable to do so, and that the defendants were given two watches to hold as collateral until the $50 could be paid. The watches were returned the next day and the money was paid.

On appeal defendants first contend that M.C.L.A. § 750.535; M.S.A. § 28.803, is unconstitutionally vague because the maximum sentence for commission of the crime is dependent upon the manner in which the goods were stolen rather than upon any acts of the defendants. This argument is not properly before this Court. Defense counsel made no such argument before the trial court. Due to this fact and since to objections were made to the proceedings below on this question of the constitutionality of the statute, we find that defendants have not preserved the issue for appellate review. People v. Watkins, 54 Mich.App. 576, 581, 221 N.W.2d 437 (1974), People v. Bennett, 52 Mich.App. 742, 750, 218 N.W.2d 407 (1974). Also, 'the record herein does not demonstrate (a clear and manifest) injustice'. People v. Smith, 20 Mich.App. 243, 245, 174 N.W.2d 22, 23 (1969).

Defendants next argue that reversible error occurred because the trial court failed to properly advise them of the consequences of testifying in their own defense. We disagree. The trial court told the defendants that if they took the stand, 'generally speaking the prosecutor has the right to examine you on the facts of the case, as well as any criminal record that you might have since you have become age 17'. Although defendants correctly point out that recent cases have greatly restricted the use of prior convictions for impeachment purposes, nevertheless it is still true that the trial court has great discretion in admitting such evidence. Therefore, it was not erroneous for the trial court to suggest that 'generally speaking' such evidence is admissible. See People v. Renno, 392 Mich. 45, 219 N.W.2d 422 (1974), People v. Jackson, 391 Mich. 323, 217 N.W.2d 22 (1974).

Defendants next claim that they were denied effective assistance of counsel due to the fact that they were both represented by the same appointed attorney.

We note at the outset that no objection to the joint representation was made by either defendant at any time prior to this appeal. Furthermore, counsel was appointed for both defendants, thus eliminating the possibility of any conflict between a paying client and an indigent client. Finally, defense counsel did not make any argument or present any defense which was designed to benefit one defendant at the expense of the other.

The law is well established that failure to appoint separate attorneys...