DocketNumber： Docket 7,252, 7,257, 7,357
Citation Numbers： 179 N.W.2d 255, 23 Mich. App. 568, 1970 Mich. App. LEXIS 1881
Judges： Burns, Fitzgerald, Van Domelen
Filed Date： 4/30/1970
Status： Precedential
Modified Date： 11/10/2024
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, George N. Parris, Prosecuting Attorney, Thaddeus F. Hamera, Chief Appellate Lawyer, and Don L. Milbourn, Assistant Prosecuting Attorney, for the people.
Robert E. Hader, for Joseph X. Scott on appeal.
Nicoletti & McCullough, for John Purdy on appeal.
Roland L. Olzark, for Charles R. Lohn on appeal.
Before: R.B. BURNS, P.J., and FITZGERALD and VAN DOMELEN,[*] JJ.
*570 PER CURIAM.
The three defendants were convicted in Macomb County Circuit Court of the 1968 armed robbery of a bar. MCLA § 750.529 (Stat Ann 1970 Cum Supp § 28.797). They raise several issues which we will treat seriatim.
The major error that all three rely on is a jail confrontation with the victim and an eyewitness that clearly violated their due process safeguards. United States v. Wade (1967), 388 US 218 (87 S Ct 1926, 18 L Ed 2d 1149); Stovall v. Denno (1967), 388 US 293 (87 S Ct 1967, 18 L Ed 2d 1199); People v. Hutton (1970), 21 Mich App 312. When the witnesses' identifications become thus tainted, it is the prosecutor's duty to prove that their in-court identifications were based on sources independent of the illegal confrontation. People v. Young (1970), 21 Mich App 684. We believe that the prosecutor has made a sufficient showing in this case for us to conclude that the in-court identifications were independently-based.
All three defendants argue that the Macomb County sheriff's deputies did not have probable cause to arrest them. However, when a police officer has been transmitted details of a robbery including a description of the perpetrators, we believe he has probable cause to arrest individuals matching that description traveling on a possible escape route from the scene of the crime minutes thereafter. MCLA § 764.15 (Stat Ann 1954 Rev § 28.874); People v. Wolfe (1967), 5 Mich App 543; People v. Wilson (1967), 8 Mich App 651; People v. Beauregard (1970), 21 Mich App 224.
Defendants Purdy and Lohn assert error by the trial court in admitting into evidence certain exhibits which they allege had not been sufficiently connected with the crime. The record reveals identification substantial enough to allow them to be admitted into *571 evidence. People v. Crawford (1969), 16 Mich App 92.
Defendant Purdy claims his right to a fair trial was prejudiced by a witness's display of an article not introduced into evidence. The transcript however, reveals that the action of the witness was entirely spontaneous and in no way caused by the prosecutor. The trial court's instruction to the jury to disregard it cured any error. People v. Wolke (1968), 10 Mich App 582.
Defendant Lohn argues that the trial court abused its discretion under MCLA § 768.5 (Stat Ann 1954 Rev § 28.1028) in not granting his motion for a separate trial. Since the facts of the crime, the witnesses, and the defenses were identical for all three defendants, the trial court did not abuse its discretion in requiring them to stand trial together. People v. Schram (1966), 378 Mich 145. Association with co-defendants at trial, by itself, is not enough to demonstrate prejudice to defendant's right to a fair trial. People v. Mullane (1931), 256 Mich 54.
The defendants raise additional alleged errors in the conduct of their trial which were not properly preserved for appeal. We will not entertain issues raised for the first time on appeal unless a clear injustice is demonstrated. People v. Ray Clifton Smith (1969), 20 Mich App 243; People v. Reynold (1969), 20 Mich App 397; People v. Omell (1968), 15 Mich App 154; People v. Owens (1968), 13 Mich App 469.
Affirmed.
[*] Circuit Judge, sitting on the Court of Appeals by assignment.