People v. Waters

• Decision Date: 24 February 1969
• Docket Number: Nos. 4627,5573,No. 1,s. 4627,1
• Citation: People v. Waters, 167 N.W.2d 487, 16 Mich.App. 33 (Mich. App. 1969)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Albert WATERS, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Edward STITT, Defendant-Appellant
• Court: Court of Appeal of Michigan

Page 487

167 N.W.2d 487

16 Mich.App. 33

PEOPLE of the State of Michigan, Plaintiff-Appellee, v.Albert WATERS, Defendant-Appellant.

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

Nos. 4627, 5573.

Court of Appeals of Michigan, Division No. 1.

Feb. 24, 1969.

Released for Publication May 15, 1969.

Dominick R. Carnovale, Carnovale & McCall, Detroit, for Waters.

Jerome A. Moore, Yoe, Casey & Moore, Detroit, for Stitt.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol.Gen., Lansing, William L. Cahalan, Pros.Atty., Wayne County, Samuel J. Torina, Chief Appellate Lawyer, Wayne County, Joseph C. Murphy(4627) Asst. Pros.Atty., Wayne County, Thomas P. Smith(5573) Asst. Pros.Atty., Wayne County, Detroit, for plaintiff-appellee.

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

J. H. GILLIS, Judge.

Defendants, Albert Waters and Edward Stitt, were charged with armed robbery C.L.S.1961, § 750.529(Stat.Ann.1969 Cum.Supp. § 28.797.)They were jointly tried before a jury and found guilty.Motions for new trial were denied and defendants filed separate appeals to this Court, which were consolidated for argument.Defendants make 5 claims of reversible error, which we deal with consecutively below.

Defendant Stitt alleges it was error to allow the prosecution to call 4 policemen to testify repetitively as to the circumstances of the arrest of Stitt which came a number of days after the holdup.He claims that the testimony was cumulative, irrelevant and prejudicial.However, no objection was made at the time these witnesses testified or any time before appeal, so this issue is not properly preserved for appeal.In the absence of manifest injustice, we decline to consider it now.People v. Dorrikas(1958), 354 Mich. 303, 92 N.W.2d 305;People v. Lewis(1967), 6 Mich.App. 447, 149 N.W.2d 457.

Defendant Stitt next claims that the trial judge erred in refusing to declare a mistrial after the complainant storeowner testified that he looked at photographs at police headquarters after the holdup.¹Since defendants herein never took the witness stand, it is urged that their credibility or past records cannot be put in issue by disclosing that they had prior police records.Defendant Stitt contends that the reference to photographs at '1300'(I.e., Detroit police headquarters at 1300 Beaubien) necessarily indicated to the jury that defendants had prior police records on file.Defendants cite cases where mention of 'mug shots' or 'prior records' necessitated mistrials.However, in the instant case, the witness never stated that he identified these defendants from the photographs and there was no mention of mug shots or prior records.It was certainly appropriate to stop this line of questioning and we think it was stopped before defendants was prejudiced.The trial judge did not abuse his discretion by denying the motion for mistrial.

Both defendants allege error in the trial court's charge regarding their failure to take the stand in their own defense.Even though the charge given was the standard one to the effect that no consideration could be given to their decision not to take the stand, defendants contend that in the absence of a request by them, the trial judge should not have given any charge on the subject.They claim that the charge given on the court's own motion, although worded favorably to defendants, would necessarily prejudice the jury simply by calling their attention to defendants' failure to take the stand.They further contend that Griffin v. California(1965), 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, requires silence from court and prosecutor when the defendant remains silent.But it is clear that Griffin forbids only adverse comment and does not speak of the problem raised in this case.²There is some split of authority among lower courts(see annotation, 18 A.L.R.3d 1337), but in 4 different circuits of the United States Court of Appeals it has been held that it is proper for a trial judge on his own motion to give a charge favorable to defendant.Hanks v. United States(CA 10, 1968), 388 F.2d 171, 175;Bellard v. United States(CA 5, 1966), 356 F.2d 437, 439;Coleman v. United States(CA 9, 1966), 367 F.2d 388;United States v. Kelly(CA 2, 1965), 349 F.2d 720, 769.And we note that trial counsel failed to object to the charge when given and specifically stated, in response to a query from the bench, that they were satisfied with the charges as given.

Defendants further allege that the trial court erred in failing to emphasize that the guilt of each defendant should be considered separately.The testimony established that the 2 defendants operated jointly.A separate trial was not requested, different defenses were not proffered, instructions to the jury pertaining to this issue were not requested, and objections to the charge were not made.We find no error on this issue.SeePeople v. Paremba(1927), 240 Mich. 489, 490, 215 N.W.2d 345.

Finally, error is alleged in that trial court gave an additional charge as to the included offense of simple assault and mentioned that the charge had been requested when, in fact, it had not.This issue was considered by this Court in People v. Thomas(1967), 7...