People v. Wilson

• Decision Date: 03 December 1969
• Docket Number: Docket No. 6531,No. 1,1
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Roy WILSON, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 79

174 N.W.2d 79

20 Mich.App. 410

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Roy WILSON, Defendant-Appellant.

Docket No. 6531.

Court of Appeals of Michigan, Division No. 1.

Dec. 3, 1969.

Released for Publication Feb. 13, 1970.

Carl Levin, Legal Aid and Defender Assn., Detroit, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Division, Angelo A. Pentolino, Asst. Pros. Atty., Wayne County, Detroit, for appellee.

Before LESINSKI, C.J., and HOLBROOK and QUINN, JJ.

PER CURIAM.

Defendant's nonjury trial on a charge of indecent liberties, M.C.L.A. § 750.336 (Stat.Ann.1954 Rev. § 28.568), resulted in his conviction of that offense. He was sentenced and he appeals alleging four grounds of error, one of which is dispositive of this appeal.

The offense occurred May 13, 1967 and defendant was tried January 9, 1968. During cross-examination of defendant, the prosecuting attorney used statements obtained from defendant during in-custody interrogation to impeach the witness. The prosecuting attorney made no showing that the Miranda ¹ warnings were given to defendant prior to his interrogation, nor did defendant object to the use of the statements. Miranda, supra, precludes the use of such statements for any purpose unless the prosecution demonstrates that the required warnings were given. Failure to object to the use of the statements does not relieve the prosecution of its obligation under Miranda, supra, nor does failure to object waive a constitutional right of defendant, People v. Jordan (1967), 7 Mich.App. 28, 151 N.W.2d 242, unless it appears that failure to object was intentional and strategic. United States ex rel. Hill v. Pinto (3 Cir. 1968), 394 F.2d 470. The latter point is not before us and we decline further comment on it. The prosecution's use of defendant's statements was reversible error.

Defendant also contends that the lineup in which he was placed May 14, 1967 was so suggestive as to violate due process. A review of this record convinces us we need not write to this contention, except as indicated in the next paragraph. The seven year old girl involved was alone with defendant for a considerable period of time in an unoccupied house under circumstances ² which necessarily imprinted on her mind the description of defendant. At trial, she unhesitatingly identified defendant, and we find that she was able to do so regardless of a prior identification at a lineup. Her experience with defendant and the length of such experience gave her an independent basis for identification untainted by any prior lineup identification. See Gilbert v. California (1967), 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178.

Defendant's contention that it was error to permit the child's father and a policewoman to testify as to the results of the lineup is not before us. Both testified without objection. People v. Webb (1968), 13 Mich.App. 625, 164 N.W.2d 697. However, since this case is remanded for new trial, counsel and the trial court are entitled to our...