People v. Winfield

• Decision Date: 22 March 1972
• Docket Number: Docket Nos. 10845,10803 and 10849,No. 2,2
• Citation: People v. Winfield, 197 N.W.2d 541, 39 Mich.App. 281 (Mich. App. 1972)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kenneth WINFIELD et al., Defendants-Appellants
• Court: Court of Appeal of Michigan

Page 541

197 N.W.2d 541

39 Mich.App. 281

PEOPLE of the State of Michigan, Plaintiff-Appellee, v.Kenneth WINFIELD et al., Defendants-Appellants.

Docket Nos. 10845, 10803 and 10849.

Court of Appeals of Michigan, Division No. 2.

March 22, 1972.

Released for Publication May 25, 1972.

Sander H. Simen, Flint, for Winfield.

Roger W. Kittendorf, Flint, for Reeves.

David I. Megdell, Flint, for Jones.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol.Gen., Robert F. Leonard, Pros.Atty., Donald A. Kuebler, Chief, Asst. Pros.Atty., for plaintiff-appellee.

Before DANHOF, P.J., and T. M. BURNS and VanVALKENBURG, ^* JJ.

T. M. BURNS, Judge.

At the conclusion of a jury trial, the defendants were all found guilty of robbery armed, M.C.L.A. § 750.529;M.S.A. § 28.797, and sentenced to terms of 7 to 20 years in prison.They appeal as of right.This Court ordered the appeals consolidated.

At the trial, complaining witness, Robby G. Duggins, testified that about 1:40 a.m. on July 7, 1970, he was walking up Brush Alley in Flint when he heard a car drive up behind him and stop.When he looked around, a man was in back of him with a bottle and he asked Duggins for his money.Duggins said he did not have any money and started running.The man then grabbed Duggins and hit him with the bottle, causing Duggins to black our for a few seconds.The man then ripped off Duggins' pocket and took his wallet.Duggins broke away and ran to a bar where someone called an ambulance for him.At the hospital, five stitches were taken in Duggins' head.His missing wallet contained $6, postage stamps, and some other items.He was unable to positively identify his assailant.

Michael Adams testified that he observed the robbery in question.He stated that he had just left a bar and started walking north on Brush Alley when he saw one man jump another.He identified defendant Jones as the man who first grabbed Duggins.He said that Jones had a bottle and Reeves had a knife.After Duggins broke loose, he saw the defendants get into a blue 1963 Buick.Adams telephoned the police, and upon their arrival at the scene, Adams told them what happened.

Adams then left; and as he walked on Grand Traverse Street, the defendants drove up behind him and stopped.The man in the back seat offered Adams a ride.Adams identified defendant Winfield as the man in the back seat, defendant Jones as the driver, and defendant Reeves as the front seat passenger.Adams declined the ride saying he was going to work at a gas station on the corner.He said that so the defendants would leave.Adams then telephoned the police again, told them what happened, and gave them the license number of defendants' car.

Officer Fisher testified to getting the license number of the car from Adams.The number was checked and found to belong to an automobile owned by defendantJ. D. Jones.The officer went to the vicinity of Jones' address and found the car in question parked on a side street.While observing the auto, he saw three people enter it and drive off.Officer Fisher then radioed for help and when another squad car arrived, the officers stopped the car.All three defendants were in the auto.Two wallets were found in the back seat, one of which belonged to complaining witness Duggins.

Defendants raise three issues on appeal.The first involves certain photographs of the scene which the people introduced for purposes of establishing the lighting conditions at the scene of the crime.Defendants argue that it was error for the court to admit the photographs taken by the Flint Police Department.

The pictures were taken at the scene at 10:30 p.m. on July 30, 1970.The crime occurred about 1:40 a.m. on July 7, 1970.It is defendants' position that before the pictures could be admitted, the people had to lay a proper foundation by establishing that the lighting conditions at the scene were the same at 10:30 p.m. on July 30, 1970, the time the pictures were taken, as they were at 1:40 a.m. on July 7, 1970, the time of the crime.

It is our opinion that the issue was not properly preserved for appeal.Although the introduction of the pictures was objected to by defendants, it was for an entirely different reason.Defense counsel, while cross-examining the officer who took the pictures, asked several questions pertaining to shutter speed, what type of film was used, and how wide the lens was on the camera.His purpose in asking the questions was to establish that the lens, shutter speed, and the film used by the officer would result in a lighter picture than if another lens, shutter speed, and film had been used.The pertinent part of the cross-examination is as follows:

'Q.Could you describe the speed of the film, the speed of the film itself?

'A.The film that I was using?

'Q.Yes.

'A. ASA speed of 400.

'Q.Could you explain to the jurors what 400 means?

'A.It's an index used on film.There's fast film and slow film and it's used under different conditions.

'Q.What is fast film used for?

'A.Fast film is used where there is less light or not favorable lighting conditions to take pictures.

'Q.Is it your opinion, based on your prior experience, that faster film would make the picture or the scene taken look much lighter than slower film?

'A.Yes, sir.

'Q.If you had taken these pictures with slower film, the picture itself, all of the pictures, would have been much darker, is that correct?

'A.It could have been, yes, sir.

'Q.Could you describe what a lens opening means?

'A.A lens opening is on the front of the camera and that regulates the light that hits the film in the camera.

'Q.Could you tell me what kind of camera you used?

'A.I used a 4 5 Graphic camera.

'Q.How small an opening did your camera go to?

'A.I think the one I used went down from 2.8, 5.6 to 22.

'Q.Youstated there is a 5.6?

'A.Yes.

'Q.Five point six is much closer to 2.8 than 22, is that correct?

'A.The lower the number, the wider the lens opening would be.

'Q.Does that have an effect, too, make it lighter in appearance?

'A.Allows more light to come in, yes, sir.

'Q.Then are you stating that this lens would show, taking it at 5.6, would indicate it much lighter than 22?

'A.Yes, sir.

'Q.Youstated, I believe, or I may ask you, was this a still shot?

'A.Yes, sir.

'Q.I believe it's five seconds?

'A.Yes, sir.

'Q.Would five seconds be lighter than one second?

'A.Yes, sir.

'Q.So more light would come into the camera?

'A.Yes, sir.

'Q.Would that have the effect of making the scene look lighter?

'A.Yes, sir.

'Q.Youhave stated this is a true and accurate representation of the scene.Could you--are you stating it is of the scene but excluding the light conditions?

'A.In printing those pictures, I tried to print those as close to exactly as I saw it that night.

'Q.Is it possible they are much brighter than what would be viewed by the eye, in your opinion?

'A.Not in my opinion, no, sir.'

Defense counsel then objected in the following manner:

'MR. SHAHEEN: Your Honor, foreseeing that the prosecuting attorney wishes to introduce these, I will have an objection, being the length of time, being a posed picture for five seconds, the nature of the lens opening being a very wide opening, the nature of the film being a very fast film.We submit they are not true and accurate representations as to lighting condition.As to the locale, we are not disagreeing.We submit these are not true and accurate representations.'

It is readily apparent from the cross-examination and the way the objection was stated that defense counsel was not objecting to the introduction of the pictures because they were taken at a different time on a later date, I.e. because of the lack of a proper foundation; counsel objected because he felt the pictures did not properly illustrate the lighting conditions at the scene of the crime At the time the pictures were taken.Defense counsel obviously felt that the procedure, shutter speed, and film used by the officer resulted in a brighter picture than the actual conditions photographed at the scene would dictate.However, the officer stated that the pictures accurately represented the scene, as he saw it, at the time the pictures were taken.The question of how accurate the pictures were was, therefore, for the jury.We would also note that the trial court cautioned the jury that there might be a variance in the lighting in the photographs and the lighting at the scene.

Defendants' objection was not based upon the fact that the crime occurred at one time on a given date while the photographs were taken at a different time at a later date.The court was not asked to rule on the foundation question at all.Therefore, we will not discuss the issue since it was not properly preserved for appeal.

Defendants secondly contend that they should have been granted directed verdicts because there was no testimony from the victim that he saw a knife.There is no merit to this contention.There was ample evidence to go to the jury based on Adams' testimony that there was an armed robbery with a knife.Defendants cite no authority to support the position that the weapon must be seen by the victim in order to establish sufficient evidence to go to the jury on a charge of armed robbery.It is our opinion that witness Adams' testimony was sufficient to establish the elements of the crime charged and the trial court was, therefore, correct in refusing to grant defendants a directed verdict.

Defendants next contend that the...