People v. Whalen

• Decision Date: 24 November 1975
• Docket Number: Docket No. 20918
• Citation: 65 Mich.App. 687,238 N.W.2d 376
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John Joseph WHALEN, Defendant-Appellant. 65 Mich.App. 687, 238 N.W.2d 376
• Court: Court of Appeal of Michigan — District of US

Page 376

238 N.W.2d 376

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John Joseph WHALEN, Defendant-Appellant.

Docket No. 20918.

65 Mich.App. 687, 238 N.W.2d 376

Court of Appeals of Michigan.

Nov. 24, 1975.

Released for Publication Feb. 17, 1976.

[65 MICHAPP 688] Burdick & Fink by N. C. Deday LaRene, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Harvey A. Koselka, Pros. Atty., for plaintiff-appellee.

Before QUINN, P.J., and R. B. BURNS and D. E. HOLBROOK, Jr., JJ.

QUINN, Presiding Judge.

Defendant's second trial ¹ for breaking and entering, M.C.L.A. § 750.110; M.S.A. § 28.305, and larceny in a building, M.C.L.A. § 750.360; M.S.A. § 28.592, resulted in his second jury conviction of both offenses. He was sentenced and he again appeals.

The only facts of the crime pertinent to our decision are that defendant was in the car which contained fruits of the crime when the car was stopped at a roadblock soon after burglary and the larceny. Other facts relating to the issues raised on appeal will be found in the discussion of those issues.

[65 MICHAPP 689] 1. Fair trial denied by admission of hearsay testimony.

This claim relates to testimony by Officer McBride concerning the license number of an automobile. Assuming, but without holding, this testimony to be hearsay, its admission was harmless error; it did not result in a miscarriage of justice, M.C.L.A. § 769.26; M.S.A. § 28.1096, People v. Roberson, 55 Mich.App. 413, 222 N.W.2d 761 (1974).

2. Reversible error occurred when witness Stoneback was permitted to testify and when witnesses Stoneback and Pollard were permitted to identify defendant in court.

Defendant claims that because the prosecuting attorney had stipulated prior to the retrial that witnesses who had not testified at the first trial would not be called at the second trial, Stoneback, who had not testified at the first trial, should not have been permitted to testify. Defendant further contends that because witness Pollard talked with witness Stoneback prior to the latter testifying, contrary to the express order of the trial judge, Stoneback should not have been permitted to testify.

The civil case authority relied on by defendant in support of his contention that the stipulation by the prosecuting attorney should have been enforced is not persuasive in this criminal case. The interest of the public in the just result of a criminal prosecution precludes the binding effect of such a stipulation. Furthermore, defendant was offered an adjournment to meet this evidence and it was declined. Still further, no prejudice to defendant has been demonstrated.

While it was improper for Pollard to discuss the case with Stoneback prior to the latter testifying, with or without an order from the trial court, the admission of Stoneback's testimony was discretionary.[65 MICHAPP 690] The record does not disclose an abuse of that discretion.

The trial court found that the contested in-court identification, tainted by improper pretrial identification, was independent of that taint. Proof to support that finding must be 'clear and convincing'. We have reviewed the record and we are unable to say that the trial court's finding was clearly erroneous, People v. Manuel Johnson, 58...