People v. St. Onge

• Decision Date: 23 July 1975
• Docket Number: Docket No. 20560
• Citation: 63 Mich.App. 16,233 N.W.2d 874
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Frank Bennett ST. ONGE, Defendant-Appellant. 63 Mich.App. 16, 233 N.W.2d 874
• Court: Court of Appeal of Michigan — District of US

Page 874

233 N.W.2d 874

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Frank Bennett ST. ONGE, Defendant-Appellant.

Docket No. 20560.

63 Mich.App. 16, 233 N.W.2d 874

Court of Appeals of Michigan.

July 23, 1975.

Released for Publication Oct. 22, 1975.

George W. Schudlich, Detroit, for defendant-appellant.

[63 MICHAPP 17] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Prosecuting Atty., Patricia J. Boyle, Appellate Chief Asst. Pros. Atty., Steven Rabinovitz, Asst. Pros. Atty., for plaintiff-appellee.

Before BRONSON, P.J., and V. J. BRENNAN and D. E. HOLBROOK, Jr., JJ.

PER CURIAM.

Defendant was found guilty by a jury of armed robbery, contrary to M.C.L.A. § 750.529; M.S.A. § 28.797. He was sentenced to a prison term of from 40 to 60 years, and appeals by right.

Defendant first contends ¹ that his conviction should be reversed because one of the prosecution witnesses, David Woods, was compelled to testify in violation of his (Woods') privilege against self-incrimination. The trial judge ordered Woods, who had pled guilty to a charge of acting as defendant's accomplice in the robbery, to testify at trial. [63 MICHAPP 18] Woods attempted to claim his privilege on grounds that his guilty plea was presently on appeal, but the trial court rejected that contention. We hold that no reversible error resulted from the introduction of the testimony of that witness.

The defendant correctly asserts that Woods was improperly ordered to testify. The privilege against self-incrimination still applies when an appeal is pending after a conviction on the charge to which the incriminating testimony would relate, People v. DenUyl, 318 Mich. 645, 29 N.W.2d 284 (1947). However, the defendant simply has no standing to either claim the privilege for a witness or complain about an error on the part of the trial judge in overruling the witness's attempt to assert it, Bowman v. United States, 350 F.2d 913 (C.A.9, 1965), Cert. den., 383 U.S. 950, 86 S.Ct. 1209, 16 L.Ed.2d 212 (1966); Poole v. United States, 329 F.2d 720 (C.A.9, 1964); Goldstein v. United States, 316 U.S. 114, 62 S.Ct. 1000, 86 L.Ed. 1312 (1942). ² Therefore, no error of which defendant can complain occurred in this regard.

Defendant next contends that reversible error occurred when the trial judge allowed the prosecutor to impeach defendant's accomplice, David Woods, who was called as a prosecution witness. It is true that the rule allowing the prosecutor to impeach a res gestae witness does not apply to accomplices, People v. Szymanski, 52 Mich.App. [63 MICHAPP 19] 605, 609, 218 N.W.2d 95 (1974); People v. Fidel, 37 Mich.App. 338, 342, 194 N.W.2d 732 (1971), but the defendant did not object to the prosecutor's impeachment of Woods. This issue was not properly preserved for appeal, People v. Coates, 40 Mich.App. 212, 214, 198 N.W.2d 837 (1972).

The last allegedly reversible error raised by the defendant concerns the final instructions. Defendant contends that the trial judge improperly instructed the jury that they must find the defendant guilty of armed robbery or not guilty, without mentioning any lesser included offenses. We disagree. All of the testimony established that the robbers were armed. The only question was whether defendant was one of the persons who participated in the robbery. Under those circumstances, the trial judge need not instruct on the lesser included offenses to armed robbery, People v. Hodo, 51 Mich.App. 628, 215 N.W.2d 733 (1974).

Affirmed.

1 Defendant raises six issues in his 'statement of questions involved', but briefs only four of these. Failure to brief an issue on appeal constitutes abandonment, Anchor Bay Citizens v. Board of Education, 55 Mich.App. 428, 223 N.W.2d 3 (1974). Therefo...