People v. Miller

21 Mich. App. 113 (1970) 174 N.W.2d 868

PEOPLE
v.
MILLER

Docket No. 5,852.

Michigan Court of Appeals.

Decided January 26, 1970. Leave to appeal denied August 25, 1970.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Samuel J. Torina, Chief Appellate Lawyer, and Arthur N. Bishop, Assistant Prosecuting Attorney, for the people.

Carl Levin (Defender's Office-Legal Aid and Defender Association of Detroit), for defendant on appeal.

Before: DANHOF, P.J., and McGREGOR and QUINN, JJ.

Leave to appeal denied August 25, 1970. 383 Mich. 822.

PER CURIAM.

This case is submitted on the people's motion to dismiss or affirm, properly a motion to affirm under GCR 1963, 817.5(3).

Defendant was tried and convicted of breaking and entering (MCLA § 750.110 [Stat Ann 1968 Cum Supp § 28.305]) by Recorder's Judge George W. Crockett, Jr., sitting without a jury, and was sentenced to serve 6 to 15 years in prison. On appeal, defendant raises three claims of error.

First, defendant claims the court erred in denying his request to dismiss his appointed counsel without ordering, sua sponte, a separate hearing into the effectiveness of counsel. While defendant may have been dissatisfied with his appointed counsel, he failed to avail himself of the opportunity to obtain retained counsel. No other attorney was ready or even named to undertake defendant's cause. In People v. Stinson (1967), 6 Mich. App. 648, this Court held that a denial of defendant's request for a continuance to enable defendant to obtain his own counsel was not error. As in the instant case, the defendant in Stinson was dissatisfied with his appointed counsel and sought an adjournment at the outset of the trial to obtain other counsel. See also People v. Edwards (1969), 18 Mich. App. 526.

Second, defendant claims he was deprived of his right to a fair and impartial trial when the trial judge, sitting as the trier of fact, failed to disqualify himself, sua sponte, after indicating his disbelief in defendant's claims in support of his request to dismiss counsel. An examination of the record reveals no request to disqualify the judge; on the contrary, the record reflects defendant's desire for the same judge to hear the case when he stated: "I want for you to hear it." Under these circumstances and in the absence of any request at trial, this question is not preserved for appellate review. People v. Piotrowski (1966), 4 Mich. App. 510. See also People v. Miller (1922), 217 Mich. 635 and People v. Turner (1952), 333 Mich. 547.

Third, defendant claims the court erred in failing to declare, sua sponte, a mistrial when a witness testified to overhearing certain statements of defendant's accomplice implicating defendant. The argument, based upon Bruton v. United States (1968), 391 U.S. 123 (88 S. Ct. 1620, 20 L. Ed. 2d 476), lacks merit. An examination of the transcript reveals the testimony was stricken from the record in response to defendant's objection. Even if the testimony remained, the admission of such testimony would have been harmless error since there was overwhelming evidence of guilt. Bearden v. United States (CA 5, 1968), 403 F2d 782; People v. Pelow (1969), 24 NY2d 161 (247 NE2d 150), and Ignacio v. Guam (CA 9, 1969), 413 F2d 513.

Motion to affirm is granted.