People v. Pruitt

28 Mich. App. 270 (1970) 184 N.W.2d 292

PEOPLE
v.
PRUITT

Docket No. 8,178.

Michigan Court of Appeals.

Decided December 1, 1970.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, and Angelo A. Pentolino, Assistant Prosecuting Attorney, for the people.

Lawrence R. Greene and Sol Plafkin, for defendant on appeal.

Before: LESINSKI, C.J., and J.H. GILLIS and BEASLEY,^[*] JJ.

J.H. GILLIS, J.

Defendant appeals his conviction by a jury of armed robbery contrary to MCLA § 750.529 (Stat Ann 1970 Cum Supp § 28.797), and raises six issues of alleged trial court error.

He first contends that the trial court erred in rejecting his request to dismiss his court-appointed attorney. We find People v. Payne (1970), 27 Mich. App. 133, dispositive of this issue. Therein this Court, relying on United States v. Bentvena (CA 2, 1963), 319 F2d 916, held that defendant's request that the trial court discharge his attorney, once the trial had begun, must be accompanied by an unequivocal request to represent himself. Here the defendant's expression of dissatisfaction with his attorney does not amount to such an unequivocal request. Thus, the trial court's refusal to dismiss his appointed counsel is not an abuse of the defendant's constitutional and statutory rights.^[1] Accord: People v. Henley (1969), 382 Mich. 143, reversing 2 Mich. App. 54.

The defendant also claims that the prosecution failed to produce all res gestae witnesses, People v. Dickinson (1966), 2 Mich. App. 646; People v. Kayne (1934), 268 Mich. 186. The prosecution may be excused from producing particular witnesses upon a showing of a diligent effort to produce the indorsed witness. People v. Kern (1967), 6 Mich. App. 406. The question of due diligence is a matter within the discretion of the trial court, barring a clear abuse of discretion. People v. Tiner (1969), 17 Mich. App. 18; People v. Alexander (1970), 26 Mich. App. 321. Likewise, the granting of a continuance is also within the discretion of the trial judge, subject to the same limitations. People v. Burnette (1969), 19 Mich. App. 336. The record before us does not support the defendant's claims of such abuse.

Defendant further alleges that his in-court identification was irreparably tainted by prior photographic identification of him. This bare assertion of constitutional error is without merit. Simmons v. United States (1968), 390 U.S. 377 (88 S. Ct. 967, 19 L. Ed. 2d 1247); People v. Jackson (1970), 24 Mich. App. 325. And since no objection was raised at trial, it will not now be heard for the first time on appeal. People v. Childers (1969), 20 Mich. App. 639.

The defendant next contends that the prosecution's description of the defendant as a "thug" in his opening statement prejudiced the jury. Although we do not endorse such subjectivity, a review of the entire record discloses that the trial court corrected this error in its instructions to the jury. People v. David Smith (1969), 16 Mich. App. 198; People v. Humphreys (1970), 24 Mich. App. 411.

Finally, defendant claims that it was reversible error for the trial court to admit into evidence a gun, bullets and money found in his possession at the time of arrest. Defendant's brief cites the Supreme Court's recognition of the obligation "to consider manifest and serious errors although objection was not made by the party who appeals", People v. Shirk (1970), 383 Mich. 180, 194. However, we also recognize that the arresting officers in this case had probable cause to arrest the defendant. Further, as noted in People v. McDonald (1968), 13 Mich. App. 226, 232:

"Where a warrant has not been obtained, the validity of the search depends on the law's appraisal of the reasonableness of the search, only unreasonable warrantless searches and seizures being barred."

Cf. People v. Cook (1970), 24 Mich. App. 401.

The gun and bullets fell within the purview of the "plain view" doctrine, and thus were subject to both seizure and introduction into evidence. Harris v. United States (1968), 390 U.S. 234 (88 S. Ct. 992, 19 L. Ed. 2d 1067); People v. Orlando (1943), 305 Mich. 686; People v. Kuntze (1963), 371 Mich. 419; People v. Tetts (1967), 6 Mich. App. 254; People v. Jenkins (1970), 23 Mich. App. 39. This evidence "was located not by a search but merely by the exercise of the officer's senses", and thus there was no illegal search, People v. Hopper (1970), 21 Mich. App. 276, 278.

The search of the defendant's person by the arresting officers was reasonable, in light of all the circumstances, and introduction of the evidence resulting from this search does not constitute reversible error. People v. Herrera (1969), 19 Mich. App. 216.

Affirmed.

All concurred.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] One accused of a crime has a right to either represent himself or be represented by an attorney. Const 1963, art 1, §§ 13, 20; MCLA § 763.1 (Stat Ann 1954 Rev § 28.854).