People v. Williams

• Decision Date: 22 March 1972
• Docket Number: Docket No. 10706,No. 3,3
• Citation: 39 Mich.App. 234,197 N.W.2d 918
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Clarence WILLIAMS, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 918

197 N.W.2d 918

39 Mich.App. 234

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Clarence WILLIAMS, Defendant-Appellant.

Docket No. 10706.

Court of Appeals of Michigan, Division No. 3.

March 22, 1972.

Released for Publication May 25, 1972.

Reginald L. Norris, Mohney, Norris, Goodrich & Titta, Grand Rapids, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., James K. Miller, Pros. Atty., Donald A. Johnston, III, Chief Appellate Atty., for plaintiff-appellee.

Before FITZGERALD, P.J., and R. B. BURNS and HOLBROOK, JJ.

HOLBROOK, Judge.

Defendant, Clarence Williams, was convicted by a jury of the crime of robbery armed, ¹ and sentenced to prison for a term of from 10 to 20 years.

The Alaska Fur Store was robbed on September 30, 1968. In the early morning of the next day, at approximately 2:30 a.m., defendant and an alleged accomplice, David Willis, were stopped for speeding on the Ohio Turnpike. Subsequently, both were charged with the armed robbery of the Alaska Fur Store.

Defendant on appeal raises four issues for determination. We combine the first two and restate the resulting issue.

I.

Does the fact that the defendant was not represented by counsel at the preliminary examination held April 27, 1970, require a reversal of his jury conviction of robbery armed under Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970)?

Defendant Clarence Williams' counsel was not present when the preliminary examination was scheduled to be heard. However, counsel for codefendant Willis was present and because witnesses from outside the state were available the preliminary examination was held.

At the preliminary examination codefendant's counsel thoroughly cross-examined the people's witnesses which resulted in benefit to both defendants. The only time defendant appeared on the record was when he complained that he was forbidden to use the phone, although he admitted contact with his mother and brother; and when he answered 'no' to the court's question, 'Do you want to ask Mr. Fisher (arresting Ohio officer) any questions?'

On May 15, 1970, counsel for defendant Clarence Williams moved to remand to the district court for preliminary examination. The trial judge denied the motion but specifically indicated that defendant could request a remand for new examination with counsel present after the transcript of the original preliminary examination had been read. Defendant did not request such a remand at any time thereafter.

Defendant does not show nor does the record indicate that any statements, admissions, or other prejudicial evidence were received while he was without counsel which affected him adversely. City of Detroit v. Wilson, 19 Mich.App. 595, 598, 173 N.W.2d 252 (1969).

The case of People v. Sullivan, 18 Mich.App. 1, 7--8, 170 N.W.2d 514, (1969), controls the question of possible prejudice concerning use of the telephone:

'Restricting a person's right to communicate with friends, relatives, or visitors, as alleged, is strongly disapproved. However, even if true in this case, this allegation of error standing by itself does not presuppose prejudicial error under the existing circumstances.'

Defendant asserts that the case of Coleman v. Alabama, Supra, is applicable to the instant case requiring reversal of his conviction.

The Supreme Court in the very recent case of People v. Williams, 386 Mich. 277, 286, 192 N.W.2d 466, (1971), discusses the ruling in Coleman v. Alabama, Supra, as follows:

'Defendant contends that the failure to have counsel at the preliminary examination precludes using the testimony given at the examination to establish a factual basis for his plea conviction. Defendant cites Coleman v. Alabama 339 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970), for the proposition that he was entitled to court appointed counsel at the preliminary examination. The United States Supreme Court in Coleman concluded that under Alabama procedure the preliminary examination constituted a 'critical stage' of the prosecution at which indigent defendants were entitled to court appointed counsel. Coleman was decided on June 22, 1970. The preliminary examination of the defendant in the instant case was held on April 29, 1959. We will not attempt to anticipate the United States Supreme Court, and therefore find that Coleman is prospective only. This same conclusion was reached in Kochel v. State of Maryland, 10 Md.App. 11, 267 A.2d 755, (1970), and in Commonwealth v. Brown 217 Pa.Super. 190, 269 A.2d 383 (1970).

'Evidence of the United States Supreme Court's own feeling on this issue is present in Wetzel v. North Carolina 399 U.S. 934, 90 S.Ct. 2250, 26 L.Ed.2d 805, (1970). In Wetzel, the majority of the Court declined to grant certiorari, with three justices dissenting on the ground that they felt Coleman should be retroactive in all cases.

'Since defendant was represented by counsel at the time his plea of guilty was accepted, and since we hold that Coleman applies only prospectively, defendant's contentions on this issue must fail.'

In the present case the preliminary examination for defendant was held on April 27, 1970. With Coleman being decided subsequently thereto on June 22, 1970, and given prospective effect only, it is not applicable herein. People v. Williams, Supra.

Under the facts in the instant case and the prevailing law applicable on April 27, 1970, we determine that reversible error was not committed by reason of the fact that defendant was without counsel at the preliminary examination. People v. Sullivan, Supra; Lundberg v. Buchkoe, 389 F.2d 154 (CA6, 1968).

II.

Did the admission of and testimony concerning photographs, including one of defendant Clarence Williams, violate his constitutional right to a presumption of innocence by conveying to the jury that he had a previous criminal record?

Defendant contends that the use of these photographs in the case and testimony as to the source of their selection implied to the jury that the persons photographed had possible prior arrests and convictions. The witness, an FBI agent, testified:

'Well at my office there is a--we maintain a file of miscellaneous photographs, individuals all of different ages and descriptions and in this instance I went through a number of these and tried to pick photographs which were similar in age and general descriptive information to the suspects' photographs.'

In the case of Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247, 1253 (1968), it is stated in part as follows:

'Despite the hazards of initial identification by photograph, this procedure has been used widely and effectively in criminal law enforcement, from the standpoint both of apprehending offenders and of sparing innocent suspects the ignominy of arrest by allowing eyewitnesses to exonerate them through scrutiny of photographs. The danger that use of the technique may result in convictions based on misidentification may be substantially lessened by a course of cross-examination at trial which exposes to the jury the method's potential for error. We are unwilling to prohibit its employment, either in the exercise of our supervisory power or, still less, as a matter of constitutional requirement. Instead, we hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. This standard accords with our resolution of a similar issue in Stovall v. Denno, 388 U.S. 293, 301--302, 87 S.Ct. 1967, 1972--1973, 18 L.Ed.2d 1199, 1206 (1967), and with decisions of other courts on the question of identification by photograph.

'Applying the standard to this case, we conclude that petitioner Simmons' claim on this score must fail. In the first place, it is not suggested that it was unnecessary for the FBI to resort to photographic identification in this instance. A serious felony had been committed. The perpetrators were still at large.'

As we interpret Simmons, supra, it was permissible to use the photographs for pretrial identification purposes. The ten photographs showed the faces of individuals. Neither witness used the photographs for positive identification of the defendant Clarence Williams. There was nothing on the photographs in writing or otherwise that would indicate that they were 'mug' shots or that any of the persons were connected with criminal activity. Also, they were not shown to the jury.

No objections were made by the defendant to the testimony of the FBI agent concerning the manner of selection, the appearance and the source of the photographs.

Defendant's objections to the photographs in the trial court raised questions of when the photographs were taken and the authenticity of the photographs but no objections were made on the grounds now asserted for the first time in our Court. No objection having been made in the trial court, it cannot be made for the first time on appeal. People v. Panknin, 4 Mich.App. 19, 143 N.W.2d 806 (1966).

At trial the defense of the defendant was alibi. A witness was produced and testified to substantiate his claim of alibi. In a similar situation our Court ruled in the case of People v. McLendon, 21 Mich.App. 142, 144, 175 N.W.2d 340 (1970), as follows:

'Defendant next questions the use of photographs to aid in identification. The United States Supreme Court has indicated that photographic identification is allowed. See Simmons v. United States (1968), 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247. An examination of the record discloses that impropriety on the part of police officers in the use of photographs was neither alleged nor established, therefore, we find no reversible error was committed by the admission...