People v. Jackson , 46 Mich. App. 764 ( 1973 )

46 Mich. App. 764 (1973) 208 N.W.2d 526

PEOPLE
v.
JACKSON
JACKSON
v.
PEOPLE

Docket No. 11298.

Michigan Court of Appeals.

Decided April 26, 1973.

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

Nedelman & August, for Charles Jackson, Adis Jackson, and Sara Jackson.

Before: LESINSKI, C.J., and FITZGERALD and J.H. GILLIS, JJ.

J.H. GILLIS, J.

Defendant, Charles Jackson, was convicted by a jury of unarmed robbery, MCLA 750.530; MSA 28.798. He appeals.

A series of robberies and assaults were perpetrated against elderly women in one Detroit neighborhood for about a year prior to defendant's arrest. Nine complaints described a similar modus operandi, and victims of the several crimes were able to furnish police with a composite picture and general description of their attacker. The Detroit News secret witness program furnished many anonymous tips to police; defendant's name was one of those supplied.

Defendant, a juvenile, was arrested after police investigation and was conveyed to the Wayne County Youth Home. A preliminary hearing was scheduled, but was adjourned several days to allow defendant's mother to retain counsel. During the interim, and before counsel was retained, a showup was conducted at which a court-appointed attorney was present.

At the outset, we consider the waiver of jurisdiction of juvenile court proper, even in light of the decision in People v Fields, 388 Mich. 66 (1972).

In Fields, the contested waiver of jurisdiction occurred in 1968, before the adoption of JCR 1969, 11. The Supreme Court, in Fields, held MCLA 712A.4; MSA 27.3178(598.4), the then current statute permitting certain juveniles to be tried as adults, unconstitutional. The issue there was one of procedural due process, since the Court questioned not whether jurisdiction could be waived, but how it was to be effectuated since the questioned statute failed to set standards for the determination of jurisdictional waiver in any particular case.

Juvenile court jurisdiction of this defendant was waived after the Supreme Court promulgation of JCR 1969, 11. The significance of that court rule cannot be denied.

As stated in Perin v Peuler, 373 Mich. 531, 540, 541 (1964):

"Not until recent years has this Court paused for reflection upon its constitutional position vis-a-vis the legislative branch when that branch assumes to enact rules of practice and procedure, which rules include, of course, the rules of evidence.

* * *

"The function of enacting and amending judicial rules of practice and procedure has been committed exclusively to this Court. (Const 1908, art 7, § 5; Const 1963, art 6, § 5); a function with which the legislature may not meddle or interfere * * *." (Emphasis supplied.)

The full force and effect of such doctrine can best be shown by the language in Wilkins v Ann Arbor City Clerk, 385 Mich. 670, 679 (1971), where resident students challenged portions of the election law on due process grounds. The Supreme Court found the statute lacking in procedural due process and stated:

"* * * if this were the only infirmity of the statute, we could correct this defect by issuing guidelines consistent with the Constitution." (Emphasis supplied.)

Thus, when the Supreme Court, in 1969, undertook to write the Juvenile Court Rules, it assumed its power to govern rules of practice, procedure, and evidence. Specifically, JCR 1969, 11, provides, in waiver hearings, the criteria for waiver, notice of hearing, right to counsel and access to social reports pursuant to the now settled requirements of procedural due process announced in Green v United States, 113 US App DC 348; 308 F2d 303 (1962), and Kent v United States, 383 U.S. 541; 86 S. Ct. 1045; 16 L. Ed. 2d 84 (1966).

Accordingly, the exception to exclusive jurisdiction^[1] in juvenile court is given effect by reference to the Juvenile Court Rules, which as well as other general court rules have the force of law. Perin v Peuler, supra.

We are not unmindful of the language in People v Fields, supra, 76, to the effect that

"* * * a statute, invalid for want of standards according to the constitutional rule * * * [cannot] be validated by any rule of Court which, although in itself well within the constitutional powers of the Court, undertakes to supply what the statute does not."

Close analysis of the cases cited in Fields in support of that proposition reveals that language to apply to situations where either nonjudicial authorities are sought to be sanctioned by the judicial decision-making process, or local court rules are announced intending to correct defects in statutory rules. For instance, in Rassner v Federal Collateral Society, Inc, 299 Mich. 206, 213 (1941), a case cited in Fields, every indication is that a general court rule can supply missing due process:

"Neither are we aware of any provision of general statute law or court rule which might be read into [the instant statute] which would cover the giving of such notice and opportunity for hearing."

Consequently, we read Fields as valid authority for the proposition that local attempts to supply due process to deficient statutory grants of power are ineffectual. However, we cannot conceive that our Supreme Court promulgated JCR 1969, 11, out of folly. Therefore, we hold jurisdiction of defendant was properly waived pursuant to that general court rule.

We next consider defendant's objections to the showup conducted in the absence of retained counsel. United States v Clark, 346 F Supp 428 (ED Pa, 1972), approved a substitution of counsel at a lineup. The police had in good faith postponed the lineup to contact defendant's retained attorney, and made other efforts to insure his presence. While circumstances do not and could not reflect such efforts by police in the instant case, since counsel had yet to be retained by defendant, we recognize that United States v Wade, 388 U.S. 218, 236-237; 87 S. Ct. 1926, 1937-1938; 18 L. Ed. 2d 1149, 1162-1163 (1967), contemplates circumstances when substitute counsel could be used to prevent the course of justice from being obstructed. United States v Clark, supra. United States v Randolph, 143 US App DC 314; 443 F2d 729 (1970), held that substitute counsel satisfied the requirements of Wade, where a lawyer for a legal aid agency served as a general representative to represent defendants otherwise unrepresented for purposes of lineups. Appointed counsel here satisfied due process requirements.

Defendant next argues that identification testimony is an inadmissible product of an illegal arrest. See Wong Sun v United States, 371 U.S. 471; 83 S. Ct. 407; 9 L. Ed. 2d 441 (1963). We disagree. Probable cause for defendant's arrest existed at the time. Police had a composite drawing of the attacker furnished by victims. Defendant closely resembled the composite drawing, wore clothing similar to that worn by assailant (although such clothing could well be described as a uniform for like-age boys — levis, levi jacket, and tennis shoes), and lived within close walking distance of all the victims. Police interviewed neighbors in an effort to learn something of defendant's reputation. These facts and circumstances support the existence of probable cause for defendant's arrest. Cf. People v Wilson, 8 Mich. App. 651 (1967); People v Jordan, 34 Mich. App. 360 (1971), cert den 406 U.S. 908; 92 S. Ct. 1616; 31 L. Ed. 2d 818 (1972). All information possessed by the police would warrant a belief by a person of reasonable prudence and caution that defendant had committed a felony. People v Harper, 365 Mich. 494, 501 (1962).

Even assuming defendant's arrest was illegal, defendant is not entitled to avoid all prosecution for the crime for which he was arrested. As stated in People v Nawrocki, 6 Mich. App. 46, 53-54 (1967):

"Conceding that the arrest was illegal does not lead to the conclusion that all proceedings subsequent thereto are void.

"``That a defendant's arrest was without a warrant or was illegal, cannot be considered at the trial, where it was followed by a complaint and warrant on which the defendant was held for trial, or, where the defendant was regularly bound over to the circuit court for trial. Even though an arrest is irregular, the defendant is not thereby given the right to say that he shall not be tried at all.' Gillespie, Michigan Criminal Law and Procedure, § 225, citing People v Miller, 235 Mich. 340 (1926); People v Payment, 109 Mich. 553 (1896)."

The identification made by the complainant was shown to be the product of her extensive opportunity to observe the defendant at the time of the offense and as such, had an independent bases. Cf. People v Drummonds, 30 Mich. App. 275, 277 (1971).

Defendant argues that testimony of other victims of similar crimes was improperly admitted. The trial judge cautioned the jury prior to and after receipt of the testimony, and again during the instructions, that the testimony was admitted not to establish guilt or innocence of the crime charged by showing defendant committed other crimes, but to corroborate identification of the complaining witness, by showing a common plan or scheme pursuant to MCLA 768.27; MSA 28.1050.^[2]

In People v Kelly, 386 Mich. 330 (1971), our Supreme Court held that evidence of separate and strikingly similar crimes is properly admissible against a defendant charged with rape and armed robbery when it tends to show a scheme, plan, or system in performing those acts. In the instant case, evidence of other crimes was properly admitted. The circumstances were strikingly similar. Each crime occurred in the late afternoon. Uninvited entries were followed by assaults with sexual overtones. All offenses were perpetrated against elderly women and all victims resided in the same general neighborhood.

The trial judge carefully circumscribed admission of the testimony, explaining its limited purposes. We find he properly exercised his discretion. People v Shaw, 9 Mich. App. 558 (1968).

Defendant contends it was error to allow one witness to offer an identification made first at a juvenile hearing on a charge that subsequently had been dismissed.

MCLA 712A.23; MSA 27.3178(598.23), states:

"A disposition of any child under this chapter, or any evidence given in such case, shall not in any civil, criminal or any other cause or proceeding whatever in any court, be lawful or proper evidence against such child for any purpose whatever, except in subsequent cases against the same child under this chapter." People v Hammond, 27 Mich. App. 490, 494 (1970), states:

"It is our conclusion that the intent of the statute is to proscribe the actual testimony taken at the juvenile proceedings. It is not meant to preclude the physical evidence, nor is it meant to exclude a witness who testified at the juvenile proceedings from testifying on the same subject matter at a subsequent trial for the same offense. What is forbidden is the use of testimonial evidence from the juvenile hearing either as substantive evidence or to impeach at a subsequent trial." (Emphasis supplied.)

The intent of the statute was not violated by allowing the witness to again make identification.

Defendant's assertions of improper argument to the jury do not merit reversal.

In Adis Jackson, Sara Jackson and Charles Jackson v People, Docket No. 11298, a separate case upon which we granted leave to appeal and which was thereafter consolidated with this matter, the issue raised was whether, during pendency of the criminal charges, defendant should be held in the custody of juvenile authorities or in the Wayne County jail. We consider this issue to be moot.

Affirmed.

All concurred.

NOTES

[1] Const 1963, art 6, § 15, provides probate courts have jurisdiction over juvenile offenders "except as otherwise provided by law".

We note that MCLA 712A.4; MSA 27.3178(598.4) was an amendment to prior provisions of the Juvenile Code. Prior to 1946 the law required mandatory waiver of jurisdiction of 15 and 16 year old juveniles accused of crimes carrying a penalty of five years or more. 1939 PA 288; 1944 PA 54. If a statutory amendment is declared unconstitutional, it is treated as a nullity and the law remains as it was before the abortive attempt to amend. Eberle v Michigan, 232 U.S. 700; 34 S. Ct. 464; 58 L. Ed. 803 (1914); People v Smith, 246 Mich. 393 (1929); In re Petition of Hendricks, 248 Mich. 124 (1929). Thus, People v Fields, 388 Mich. 66 (1972), does not destroy the power of juvenile courts to waive jurisdiction of certain offenders.

[2] "In any criminal case where the defendant's motive, intent, the absence of, mistake or accident on his part, or the defendant's scheme, plan or system in doing an act, is material, any like acts or other acts of the defendant which may tend to show his motive, intent, the absence of, mistake or accident on his part, or the defendant's scheme, plan or system in doing the act, in question, may be proved, whether they are contemporaneous with or prior or subsequent thereto; notwithstanding that such proof may show or tend to show the commission of another or prior or subsequent crime by the defendant."