People v. Stroble, Docket No. 7709

• Decision Date: 23 February 1971
• Docket Number: No. 1,Docket No. 7709,1
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Bernard STROBLE, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 474

187 N.W.2d 474

31 Mich.App. 94

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Bernard STROBLE, Defendant-Appellant.

Docket No. 7709.

Court of Appeals of Michigan, Division No. 1.

Feb. 23, 1971.

Released for Publication June 9, 1971.

Arthur J. Tarnow, State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Angelo A. Pentolino, Asst. Pros. Atty., for plaintiff-appellee.

Before LESINSKI, C.J., and J. H. GILLIS and BEASLEY ^*, JJ.

PER CURIAM.

Found guilty of first-degree murder ¹ by a jury, defendant appeals, seeking reversal of his conviction.

This case arises from the shooting and killing of James Raffoul, a jewelry store clerk, in Detroit on December 24, 1965, during the course of an armed robbery. During this holdup the jewelry store owner, Joseph Cooper, was also shot and subsequently died some months later.

Defendant was apprehended in New York City in connection with an unrelated offense and confessed the Detroit murder of Raffoul to a New York police detective, who testified he had not previously heard of the Detroit crime to which the defendant confessed. On trial, defendant's confession was admitted in evidence, after a full Walker hearing ² by the trial judge.

It should be noted that the jury verdict did not rest solely upon the confession since the jewelry store owner, also shot in the robbery, positively identified defendant as the killer at the preliminary examination. However, he died of his wounds before trial.

In the Walker hearing, defendant asserted that he knew about the Miranda case ³ and understood the Miranda warnings. Specifically, defendant testified that he knew he had a right to remain silent; the right to refuse to give a statement; that if he did talk to the police what he said could be used against him; that he had a right to have counsel; that if he could not afford counsel, counsel would be furnished him; and that he had a right to have counsel present during the questioning if he chose; and that he had a right to be represented by counsel at trial, arraignment, examination, 'etc.' (Quoted 'etc.' is defendant's word.) Defendant subsequently claimed that the police did not give him Miranda warnings and that he never gave a statement.

However, in view of the other testimony in this record, it is unnecessary to decide whether there is any legal reason requiring a Miranda warning where a defendant freely and voluntarily admits he knows all about his Miranda rights. The New York police detective testified unconditionally that he gave the Miranda warnings to defendant. If that testimony is believed, and the record would indicate the trial judge apparently did believe this testimony, there was sufficient basis for the trial judge to admit the confessions after the Walker hearing. The issue in the Walker hearing was of credibility, and the record was ample to support the trial judge's finding.

Defendant further argues that he was unduly prejudiced by the assistant prosecutor stating in closing argument his personal belief that the New York detective had told the truth. An examination of the closing argument as a whole does not give any indication that the prosecutor intended to apply any special knowledge as to the credibility of the witness. More important, no objections were raised to these remarks at the time they were made, nor was there a request made for an instruction concerning the argument. Failure to make timely objection to the content or form of closing arguments precludes raising the question on review.

Lastly, defendant claims that under the Interstate Agreement on Detainers to which Michigan has become a party pursuant to statute, (M.C.L.A. § 780.601 (Stat.Ann.1969 Rev. § 4.147(1))), this conviction for this murder should be reversed and an order entered dismissing these proceedings with prejudice on the ground that he was not brought to trial within the time specified in the statute. The portion of the statute relied upon by defendant provides as follows:

'In respect of any proceeding made possible by this Article, trial shall be commenced within one hundred twenty days of the arrival of the prisoner in the receiving state, but for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.'

The facts are that defendant was arrested in New York City in connection with a homicide that occurred there. He was tried, convicted of first-degree manslaughter under New York law, and sentenced to a 20-to 30-year term in prison. As indicated above, defendant confessed both of the Detroit jewelry store murders to the New York police. On June 27, 1968, defendant was brought to Detroit under the Interstate Agreement on...