People v. Leroy Morgan , 24 Mich. App. 660 ( 1970 )

24 Mich. App. 660 (1970) 180 N.W.2d 842

PEOPLE
v.
LEROY MORGAN

Docket No. 7,558.

Michigan Court of Appeals.

Decided June 25, 1970.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Robert A. Reuther, Assistant Prosecuting Attorney, for the people.

Stephen M. Losh, for defendant on appeal.

Before: LESINSKI, C.J., and QUINN and O'HARA,^[*] JJ.

LESINSKI, C.J.

On December 12, 1967, a Montgomery Ward private security officer observed Leroy Morgan and a female accomplice approach the sweater counter in the Livonia Ward store, place two sweaters in a bag, and leave without paying. The guard called a fellow officer and followed defendant and the girl outside. The first officer testified that she stopped the pair and accused them of taking some merchandise without paying. Defendant replied, "Yes." The pair were taken to the store security office and questioned about the crime. The defendant stated that the girl was pregnant and that he took the sweaters to sell to obtain food money. The Livonia police were called and arrested the two persons. After trial by jury the defendant was convicted of larceny in a building^[1] and sentenced to a prison term of three to four years.^[2] He appeals as of right.

At the outset we note that no objections were raised below concerning the issues raised on appeal. While, as a general rule, this Court will not review matters not properly preserved for review, we will, in the exercise of our discretion, search the record to determine whether the errors indicate manifest injustice depriving defendant of a fair trial. People v. Reynold (1969), 20 Mich. App. 397; People v. Owens (1968), 13 Mich. App. 469; People v. Willis (1965), 1 Mich. App. 428. See, also, People v. Kelsey (1942) 303 Mich. 715.

The first allegation of error concerns the security officer's testimony relating to defendant's statement in the security office. Defendant argues that the statement was inadmissible because the officer failed to advise defendant of his constitutional rights, before interrogation, as required by Miranda v. Arizona (1966), 384 U.S. 436 (86 S. Ct. 1602, 16 L. Ed. 2d 694). Defendant correctly recognizes that this Court discussed this issue in People v. Omell (1968), 15 Mich. App. 154, 157, where we held that "a private investigator is not an officer of the law in such capacity that he is required to render a constitutional warning precedent to the taking of a statement in the nature of a confession." However, defendant attempts to distinguish Omell on the grounds that the security officers here were acting "in concert with the police" while in Omell they were not. We disagree. In Omell the officers, private detectives hired by defendant's employer to investigate possible embezzlement, suspected defendant of wrongdoing, confronted him at his office, and persuaded him to write a letter to his employer admitting wrongdoing. We discern no practical difference between the facts of Omell and the facts of the instant case. Omell controls.

Defendant's second allegation of error is that the prosecutor's remarks during closing argument violated defendant's right against self-incrimination. The prosecutor stated first that "[w]e have uncontroverted evidence here on the stand, and I want to emphasize ``uncontroverted evidence,' that the defendant here went into the store with a female friend". Again in rebuttal the prosecutor said: "Now, as I told you before, there is uncontroverted evidence here. The case is that simple. There is no defensive testimony here showing otherwise than what had occurred". Defendant argues that the statements concerning "uncontroverted evidence" were made for the purpose of emphasizing to the jury that defendant failed to take the stand and controvert the evidence against him.^[3] This issue was decided adversely to defendant in People v. Alexander (1969), 17 Mich. App. 497. See, also, Leak v. Follette (CA2, 1969), 418 F2d 1266, where the court, per Friendly, J., held similar remarks permissible:

"Neither the language, the history, nor the policy of the self-incrimination clause affords support for the surprising proposition that in declaring that no person ``shall be compelled in any criminal case to be a witness against himself,' the authors of the Bill of Rights intended to prohibit proper advocacy concerning the strength of the prosecution's case.

* * *

"We would not want this opinion to be taken as issuing any roving commission to prosecutors. Inflections and gestures may have an effect the cold record cannot convey, and trial judges must be alert to prevent abuses of that sort. We hold only that where the prosecutor confines himself to arguing the strength of his case by stressing the credibility and lack of contradiction of his witnesses, we will not be astute to find in this a veiled comment on the defendant's failure to testify even if in practical fact, although not in theory, no one else could controvert them."

Defendant's third allegation of error concerns the failure of the prosecution to call, as a res gestae witness, the defendant's female accomplice. Although the prosecutor is under a general obligation to indorse on the information and call as witnesses all noncumulative res gestae witnesses, this duty does not extend to the calling of accomplices. People v. Chaney (1970), 21 Mich. App. 120; People v. Virgil Brown (1969), 15 Mich. App. 600. No error occurred.

Defendant's final allegation of error concerns the trial court's alleged failure to consider the possibility of sentencing defendant, a narcotics addict, to probation conditioned upon commitment to the Narcotics Rehabilitation Center in Lexington, Kentucky. Without deciding whether the trial court had the power to issue such an order, we find that the record indicates that the trial judge did, in fact, consider many possible alternatives to a prison term for this defendant. However, after determining that no adequate facilities for the treatment of convicted criminals, suffering from addiction, exist in the State of Michigan and that other charges were pending against this defendant, the trial court reluctantly imposed a prison sentence. The sentence was within the maximum provided by law and cannot be disturbed on appeal. People v. Guillett (1955), 342 Mich. 1; People v. Pate (1965), 2 Mich. App. 66. We also reach this decision somewhat reluctantly because we recognize the dilemma of the trial judge. The defendant here was convicted of a crime. However, it is apparent that the driving force behind defendant's actions is his insatiable and expensive narcotics habit. Unless the defendant receives proper medical treatment aimed at controlling or curing his sickness, he can be expected to steal again. Unfortunately treatment facilities do not exist in Michigan. The trial judge was aware of this fact, as is this Court; however, as courts we are powerless to erect the proper drug treatment facilities.

Having found no error in the proceedings below the conviction and sentence of the defendant are affirmed.

Affirmed.

All concurred.

NOTES

[*] Former Supreme Court Justice sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23, as amended in 1968.

[1] MCLA § 750.360 (Stat Ann 1954 Rev § 28.592).

[2] Leroy Morgan's codefendant entered a plea of guilty of attempted larceny in a building and was sentenced to one year in the Detroit House of Correction.

[3] No objection was raised. The trial judge denied the prosecutor's request to charge the jury on the uncontroverted nature of the evidence and told them instead:

"The defendant in this case had a right to go upon the witness stand and testify in his own behalf if he chose to do so. The law, however, expressly provides that no presumption adverse to him is to arise from the mere fact that he does not place himself upon the witness stand. So in this case the mere fact that the defendant has not availed himself of the privilege which the law gives him should not be permitted by you to prejudice him in any way. It should not be considered evidence of his guilt or innocence. The failure of the defendant to testify is not even a circumstance against him, and no presumption of guilt can be indulged in by the jury because of this failure on his part."