People v. Trudeau

• Decision Date: 05 March 1974
• Docket Number: Docket No. 16268,No. 2,2
• Citation: People v. Trudeau, 216 N.W.2d 450, 51 Mich.App. 766 (Mich. App. 1974)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Edward TRUDEAU, Defendant-Appellant
• Court: Court of Appeal of Michigan

Page 450

216 N.W.2d 450

51 Mich.App. 766

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Edward TRUDEAU, Defendant-Appellant.

Docket No. 16268.

Court of Appeals of Michigan, Division No. 2.

March 5, 1974.

Rehearing Denied March 26, 1974.

Released for Publication April 3, 1974.

Leave to Appeal Denied June 12, 1974.

Joseph L. Hardig, Jr. Hardig & Goetz, Birmingham, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., L. Brooks Patterson, Pros. Atty., for plaintiff-appellee.

Before J. H. GILLIS, P.J., and R. B. BURNS and CAMPBELL,* JJ.

J. H. GILLIS, Presiding Judge.

On retrial, a jury convicted defendant of manslaughter, M.C.L.A. § 750.321; M.S.A. § 28.553, and breaking and entering, M.C.L.A. § 750.110; M.S.A. § 28.305. On appeal, we affirm. The facts are fully set out in People v. Trudeau, 385 Mich. 276, 187 N.W.2d 890 (1971), reversing 22 Mich.App. 246, 177 N.W.2d 171 (1970), cert. den. 405 U.S. 965, 92 S.Ct. 1169, 31 L.Ed.2d 240 (1972). Reiteration is unnecessary to dispose of the issues raised.

Defendant asserts that the trial judge erred in failing to adjourn the arraignment on the information after defendant demanded appointed counsel for arraignment purposes. He claims Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), and People v. Wiggins, 6 Mich.App. 340, 149 N.W.2d 261 (1967), provide an absolute right to counsel without showing prejudice.

We do not agree. The Court refused defendant's request for appointed counsel for arraignment purposes, entered pleas of not guilty to the charged counts, appointed counsel for the defendant, and set the matter down for trial. Further, the court postponed consideration of two motions offered In propria persona, until defense counsel could present them. One motion, requesting a new preliminary examination, was granted after defense counsel presented it. Defendant asserts no prejudice and none appears from this record.

'In Michigan, any person charged with a felony has the right to legal counsel before being required to plead at arraignment by virtue of GCR 1963, 785.3.' People v. Wurtz, 1 Mich.App. 190, 196, 135 N.W.2d 579, 583 (1965).

GCR 1963, 785.3(1), provides:

'If the accused is not represented by counsel upon arraignment, before he is required to plead, the court shall advise the accused that he is entitled to a trial by jury and to have counsel, and that in case he is financially unable to provide counsel the court will, if accused so requests, appoint counsel for him. If the accused states he will procure counsel or requests that counsel be appointed, a reasonable time thereafter shall be allowed for counsel to consult with the accused before his plea shall be taken.' ¹

In People v. Stewart, 22 Mich.App. 51, 176 N.W.2d 700 (1970), defense counsel did not appear at the arraignment on the information after notice. The information was read and the trial court entered a plea of not guilty in defendant's behalf in the absence of counsel. Defendant claimed no prejudice and none appeared on the record. The Court found no error because the entry of the not guilty plea did not operate to defendant's disadvantage. Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961); White v. Maryland, 373 U.S. 59 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963), and the more searching test of Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970), ² dictate a similar result here.

'From Hamilton v. Alabama and White v. Maryland, it is plain that there is no arbitrary point in time at which the right to counsel attaches in pre-trial proceedings. Even in White, decided after Gideon, the Court did not refer to counsel 'at every stage.' Rather, The 'critical' point is to be determined Both from the nature of the proceedings and from that which actually occurs in each case.' (Emphasis supplied.) United States ex rel. Cooper v. Reincke, 333 F.2d 608, 611 (CA 2, 1964). ³

People v. Wiggins, Supra, is distinguishable. The Court spoke absolutely, but found defendant had been prejudiced by entry of a not guilty plea and waiver of preliminary examination. Counsel was not appointed until one day before trial. That trial date was adjourned and appointed counsel withdrew. Substitute counsel's motion for a preliminary examination was denied in view of the number of previous adjournments. Wiggins properly found an abuse of discretion in denying the preliminary examination request. Further, reversible error arose from lack of advice of the right to counsel and failure to assign counsel until 1 month after the not guilty plea. Cf. People v. Wurtz, Supra, in which an articulated 'prejudice' test was applied.

Further, defendant was not 'required to plead'. Defendant stood mute and a not guilty plea was entered for him. Defendant therefore lost no crucial rights from the judge's act. People v. Griffin, 33 Mich.App. 474, 190 N.W.2d 266 (1971); People v. Sullivan, 18 Mich.App. 1, 170 N.W.2d 514 (1969).

Next, defendant argues that overruling objections to certain allegedly leading questions asked of the key witness, relating to prejudicial admissions of the defendant, constituted abuse of discretion.

M.C.L.A. § 768.24; M.S.A. § 28.1047, provides:

'Within the discretion of the court no question asked of a witness shall be deemed objectionable solely because it is leading.'

Since the witness did not understand questions propounded to him no abuse of discretion resulted. People v. Johnson, 5 Mich.App. 257, 146 N.W.2d 107 (1966); People v. Foster, 12 Mich.App. 418, 162 N.W.2d 925 (1968). We see no danger here that the prosecutor's questions had been designed to secure the witness's acquiescence in a false suggestion. People v. Lasley, 21 Mich.App. 340, 348, 175 N.W.2d 883, 887 (1970) (Bronson, J. dissenting).

Defendant next alleges that admitting parol testimony about gloveprints at the scene which matched defendant's gloves violated the best evidence rule. The police had routinely destroyed the prints some time after the first trial and appeal.

The best evidence rule is inappropriate. It generally applies to documentary evidence where the contents are in issue, not to tangible physical evidence. Dunaway v. State, 50 Ala.App. 198, 278 So.2d 198, cert. den., 50 Ala.App. 200, 278 So.2d 200 (Ala.Cr.App.1973).

Assuming Arguendo the best evidence rule applies, secondary evidence is admissible when evidence is destroyed, absent a showing of negligence or bad faith. Commonwealth v. Cromartie, 222 Pa.Super. 278, 294 A.2d 762 (1972), United States v. Trenary, 473 F.2d 680 (CA 9, 1973). The routine destruction of this evidence several years after its original taking and defendant's trial, conviction, and appeal to this Court, shows neither negligence nor bad faith.

Citing People v. Burrel, 253 Mich. 321, 235 N.W. 170 (1931), defendant urges mere presence at the scene of a felony cannot create a jury question of aiding and abetting second-degree murder. ⁴

Defendant states a true legal proposition. However, the prosecution showed more than mere presence. The jury could reasonably infer intent from defendant's close assocation with the actual killer, his participation in planning and executing the breaking and entering, evidence of flight after the killing (which may be considered in guilt determination, People v. Cipriano, 238 Mich. 332, 336, 213 N.W. 104, 105 (1927)), and defendant's inculpatory admissions. Since sufficient evidence was adduced, whether the homicide was fairly within the scope of the common enterprise was for the jury. People v. Poplar, 20 Mich.App. 132, 173 N.W.2d 732 (1969). While another person delivered the fatal blows, there is sufficient evidence that defendant acted in concert with him. People v. Dawson, 32 Mich.App. 336, 188 N.W.2d 676 (1971). People v. Knapp, 26 Mich. 112, 115 (1872), articulated the now well established principle:

'There can be no criminal responsibility for anything not fairly within the common enterprise, and Which might be expected to happen if the occasion should arise for anyone to do it.' (Emphasis supplied.)

The prosecution produced more evidence than mere presence; the question whether the act was fairly within the common enterprise was properly sent to the jury.

Next, somewhat cryptically, defendant argues that failure to secure a new warrant and complaint on retrial was reversible error. He claims denial of the benefits of People v. Hill, 44 Mich.App. 308, 205 N.W.2d 267 (1973), because the evidence supporting the magistrate's probable cause determination was later declared the product of an illegal search and seizure. ⁵ Defendant apparently claims that relying on inadmissible evidence deprives him of the independent probable cause determination which Giordenello, ⁶ Aguilar, ⁷ and Whiteley ⁸ guarantee. The novel viewpoint permits us to examine and clarify People v. Hill, Supra.

Hill requires the court to make an independent and neutral determination of the facts underlying the judgment of probable cause to arrest. The magistrate reviewing the arrest warrant need not rule on the 'admissibility' of persons or evidence to be seized. The independent judgment to be exercised, which the Fourth and Fourteenth Amendments mandate, is quite simply whether there are reasonable grounds to believe the suspect guilty. ⁹

Some jurisdictions require probable cause findings to be supported only by legally admissible evidence. ¹⁰ The requirement is not of constitutional dimension, even when the inadmissible evidence is the basis for a grand jury indictment, a much later stage in the criminal process. Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956) (but Cf. People v. Asta, 337 Mich. 590, 60 N.W.2d 472 (1953), condemning use of inadmissible hearsay at the preliminary examination). In Michigan, as elsewhere, objections to illegally seized evidence are properly raised by a motion to suppress.

We know of no case, and are cited to none, which requires...