People v. Wilson, Docket No. 917

• Decision Date: 04 December 1967
• Docket Number: No. 3,Docket No. 917,3
• Citation: 8 Mich.App. 651,155 N.W.2d 210
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. George WILSON, Jr., Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 210

155 N.W.2d 210

8 Mich.App. 651

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

Docket No. 917.

Court of Appeals of Michigan, Division No. 3.

Dec. 4, 1967.

Released for Publication Jan. 17, 1968.

Edward M. Yampolsky, Benton Harbor, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. General, Lansing, John T. Hammond, Pros. Atty., St. Joseph, for appellee.

Before QUINN, P.J., and FITZGERALD and HOLBROOK, JJ.

FITZGERALD, Judge.

Defendant has been granted leave to appeal to this Court from the denial of a number of motions made by his counsel to the Berrien County circuit court for a new trial, a writ of habeas corpus, and subpoenas at the expense of the People.

Defendant was tried and convicted on April 24, 1958, of robbery armed and sentenced to serve a term of 30 to 50 years in prison. The facts leading to the conviction, and the procedures involved in his arrest and identification, provide the grounds for this appeal.

At midnight on February 21, 1958, 2 student teachers were attacked and robbed of $72 by a man on a street in downtown Benton Harbor. The screams of the students finally frightened the man away. On the basis of an anonymous phone call, and from the descriptions furnished by the 2 students, defendant was arrested without a warrant at his home the next night. At the police station, defendant informed the investigating officers that the clothes he had worn the previous night were at his home, and he was returned to his home in the company of police, where the officers seized a hat, coat and pants. Detectives later also took a pair of shoes from defendant's home. There was no evidence of consent by defendant to either search and seizure.

Forced to don these clothes, plus a handkerchief over his face, defendant was identified through a two-way mirror by one student as being her assailant. He was then interrogated for 2 more days without counsel and arraigned on February 25, with counsel being present. An information was issued on March 14 following the preliminary examination, and defendant was bound over for trial. On April 22, 1958, the night before his trial, defendant was placed in a lineup for purposes of identification, without counsel being present, and was identified by the other student, with the first student also being present. Defendant, a lightly pigmented Negro, alleges that the other men in the lineup were all darkly pigmented Negroes, thus distinguishing defendant's appearance.

Defendant was found guilty by the jury of armed robbery and was sentenced on June 6, 1958. A number of procedural actions were then taken by defendant over the next 7 years and will be summarized as follows, with the decision of the court being given:

October 22, 1958--Delayed motion to vacate judgment, set aside sentence, and for new trial on 11 grounds. Denied

January 22, 1959--Petition for appointment of counsel to assist in appeal to Supreme Court of Michigan. Denied

April 27, 1959--Application for leave to appeal to Supreme Court of Michigan. Denied

May 11, 1959--Petition for appointment of counsel to assist in appeal to Supreme Court of Michigan. Denied

November 9, 1959--Petition for Writ of Certiorari to the United States Supreme Court. Denied

January 19, 1962--Delayed motion for new trial in Berrien County circuit court on 3 grounds. Denied

August 16, 1962--Application for leave to appeal to Supreme Court of Michigan. Denied

October 14, 1963--Petition for Writ of Certiorari to the United States Supreme Court. Denied

August 26, 1964--Petition for appointment of counsel to assist in motions and appeals. Granted

December 8, 1964--Delayed motion for new trial in Berrien County circuit court, Motion for Writ of Habeas Corpus, and Motion for Subpoenas at the expense of the People. Denied

July 16, 1965--Application for delayed appeal to the Court of Appeals of the State of Michigan. Granted

A number of issues are presented on appeal to this Court and will be consolidated and condensed as follows:

(1) Was defendant illegally arrested, was his home illegally searched, and were his clothes illegally seized?

(2) Should the identification of defendant by the 2 students at his trial have been excluded from consideration by the jury because the identifications were first made after forcing defendant to:

a) put on the particular clothes b) appear in a lineup without having council present?

(3) Should the record contain a copy of the prosecutor's authorization for the issuance of the warrant?

It must be noted at the outset that counsel for defendant did not make a motion to suppress the introduction of the clothing as being the fruit of an illegal search at any time prior to or during defendant's trial. Thus, we are first asked to determine whether we may hear the constitutional issue of illegal search and seizure. Defendant contends that the case of Henry v. State of Mississippi (1965), 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 should apply, the Supreme Court of the United States stating:

'A procedural default which is held to bar challenge to a conviction in state courts, even on federal constitutional grounds, prevents implementation of the federal right.'

Also see Fay v. Noia (1963), 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837, where the Supreme Court released a defendant on habeas corpus proceedings, concerning an illegally obtained confession, despite defendant's failure to appeal within the time permitted by the laws of the State of New York, that Court stating:

'A defendant by committing a procedural default may be debarred from challenging his conviction in the state courts even on federal constitutional grounds. But a forfeiture of remedies does not legitimize the unconstitutional conduct by which his conviction was procured. * * * Nor does a state court's finding of waiver bar independent determination of the question by the federal courts on habeas, for waiver affecting federal rights is a federal question.'

Thus, according to defendant, the fact that timely objection was not made under the requirements of the Michigan law, GCR 1963, 507.5, People v. Robinson (1955), 344 Mich. 353, 74 N.W.2d 41, should not bar our consideration of a Federal constitutional right as he would have review on the issue in the Federal courts, if the state appellate courts denied review. However, the Court in the Henry case also states that the state procedural rule may bar further consideration of the constitutional issue when the legitimate state interest in the particular procedure can be said to be overriding. We cite the language of the Henry decision at 379 U.S. 447, 85 S.Ct. at 567, 13 L.Ed.2d at 413:

'* * * a litigant's procedural defaults in state proceedings do not prevent vindication of his federal rights unless the State's insistence on compliance with its procedural rule serves a legitimate state interest. In every case we must inquire whether the enforcement of a procedural forfeiture serves such a state interest.'

In the present case, this Court will take the same action and will find that there is a legitimate state interest in barring appellate review where no objection was made as to the legality of the search and seizure, as the appellate court thus would be presented with insufficient evidence on the record to enable it to make a fair decision. In addition, we have stated in the case of People v. Bradley (1966), 4 Mich.App. 660, 145 N.W.2d 390, that:

Objections not raised during trial and passed upon by the trial court will not be heard by an appellate court for the first time. People v. Jury (1966), 3 Mich.App. 427, 142 N.W.2d 910.

A defendant with knowledge of facts constituting an alleged illegal search and seizure before trial has the responsibility of communicating same to his attorney who then has the responsibility of moving to suppress in advance of trial. People v. Ferguson (1965), 376 Mich. 90, 95, 135 N.W.2d 357, citing the holding in People v. Bass (1926), 235 Mich. 588, 209 N.W. 927.

Defendant's contention that the issue was raised at a post-trial proceeding will not alter our finding that he knew of the seizure prior to the trial and that he is charged with the responsibility or relaying that knowledge to his attorney.

Thus, we do not consider further the issue of the search and seizure. We will decide whether the arrest of defendant was proper, such arrest being made, without a warrant, on the basis of descriptions given by the victims and a telephone call by an informant who remains anonymous.

The assistance of an anonymous informer in narrowing the search for a criminal is certainly not to be Per se denied the police department. Reasonable cause for arrest is required before the peace officer may arrest without a warrant. C.L.1948, § 764.15 (Stat.Ann.1954 Rev. § 28.874). Arresting solely on the basis of an anonymous tip does not provide the officer with reasonable cause to act without a warrant. People v. Zeiger (1960), 358 Mich. 355, 356, 100 N.W.2d 456. However, when the officer has additional information, he may proceed with the arrest subject to review of his actions by the court considering the facts of the particular case. Wong Sun v. United States (1963), 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441. For more recent amplification, see People v. Wolfe (1967), 5 Mich.App. 543, 147 N.W.2d 447. We find that the descriptions of the assailant given the police officers by the victims of the obvious felony are reliable information, when combined with the anonymous tip, to enable the officers to arrest defendant without a warrant. See People v. Guertins (1923), 224 Mich. 8, 194 N.W. 561.

We have disposed of defendant's contention that the clothing which he was forced to wear was illegally seized. However, defendant also would have us find that the identification of him by the first student, when he was involuntarily dressed in that clothing, should not have been admitted at the...