DocketNumber： Docket 4,678
Citation Numbers： 167 N.W.2d 814, 16 Mich. App. 92
Judges： McGregor, P.J., and Fitzgerald and Cynar
Filed Date： 2/25/1969
Status： Precedential
Modified Date： 8/25/2023
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Samuel J. Torina, Chief Appellate Lawyer, and Angelo A. Pentolino, Assistant Prosecuting Attorney, for the people.
John C. Emery, Jr., and Carl Levin and George G. Matish (Legal Aid and Defender Association of Detroit), for defendant.
BEFORE: McGREGOR, P.J., and FITZGERALD and CYNAR,[*] JJ.
Leave to appeal denied May 13, 1969. See 382 Mich 752.
FITZGERALD, J.
Defendant was charged with committing a robbery at a Detroit A & P store at approximately 4 p.m. on March 28, 1967. The complaining witness, a checkout cashier, testified that *94 she had observed the defendant in the store for about a half hour before he appeared in the line to pay for some cat food. Simultaneously, he demanded money, and according to complainant, "he had a small gun in his hand." She gave him $125 and notified police after he departed.
The defendant was picked up by 2 patrolmen when they stopped a taxicab in which he was riding about 3 blocks from the store. A "starter" pistol was confiscated from the floor of the cab at the time of arrest as was $32 in cash.
A charge of robbery armed[1] was lodged against defendant. He waived trial by jury and was tried in the recorder's court of the city of Detroit and found guilty.
On appeal, several issues are raised, chief of which is an allegation that defendant was deprived of the effective assistance of counsel when his court appointed attorney undermined his defense of alibi during the opening statement. Specifically, the statement was as follows:
"Mr. Ward: May it please the court, our defense in this matter will be a general denial. It borders on the verge of an alibi, but we cannot prove definitely just where the defendant was.
"The Court: Do the people rest at this time?
"Mr. Hayes: Yes, your Honor, the people have rested.
"Mr. Ward: We cannot prove an alibi, because we do not know definitely where the defendant was at the approximate time of this hold-up.
"The story that he tells me is that he was in the general neighborhood; he lives there. That he was at several places, and he ended up at the home of a Mrs. Doris Evans at 3438 Garfield.
"So since it was such a wide divergence in the time of the hold-up and the time of the different places *95 where this defendant was, I can't say I could say with any degree of certainty where he was. So that the only defense that I have is his general denial." (Emphasis supplied.)
It is now contended that this statement "in effect blotted out the essence of a substantial defense", quoting Bruce v. United States (1967), 126 App DC 336 (379 F2d 113, 117). With this argument we are not impressed. The hard fact remains that despite the testimony of defendant when he took the stand, the defense of alibi was not properly pleaded (by filing of notice)[2] and as such cannot be considered a part of the defense per se. No allegation of incompetence for failure to plead alibi is raised on appeal. The case of People v. Foster (1966) 377 Mich 233, furnished little support for defendant, being based as it is on a holding that a trial judge is burdened with the duty to supervise the work of court-appointed counsel so as to "insure reasonable competence" of such counsel. That the trial court was satisfied with the defense's presentation and that defendant at the time held his attorney blameless is borne out by the following colloquy at time of sentence:
"The Court: Do you have anything to say, Mr. Crawford?
"The Defendant: Yes, sir, your Honor. I have never committed a crime of violence in my life, and this trial I'm not guilty of this crime; I'm not blaming my attorney, but some of the facts in this case were not brought before this court, because I had certain things, as to the time of my whereabouts were not brought out correctly.
"The Court: Well, I recall this matter, and I do recall in fact that your attorney did an excellent job.
*96 "You have, as Mr. Ward and I will explain to you, a review right; appeal right in this matter, in other words.
"In my estimation, after reviewing this case quite thoroughly, the matter was handled very diligently, and you were convicted because, in the estimation of this court, because you were guilty. The charges were presented to the court, and they were proven beyond a reasonable doubt."
Chief among cases in the area of competence of counsel is People v. Ibarra (1963), 60 Cal 2d 460 (34 Cal Rptr 863, 386 P2d 487), in which a test is suggested in the words, "It must appear that counsel's lack of diligence or competence reduced the trial to a `farce or a sham.'" The case further suggests that counsel must investigate all defenses of fact and law that may be available to the defendant, and if his failure to do so results in withdrawing a crucial defense from the case, the defendant has not had the assistance he is entitled to. The instant record does not support a finding that either "farce or sham" or "withdrawing a crucial defense" occurred here.
A further related allegation on appeal is that the opening statement also violated the lawyer-client privilege by the defense counsel's reference to "the story that he [defendant] tells me". While, arguendo, the phrase might be construed as blurting out a confidence, the fact remains that any advocate has no more to work on factually than his client "tells him" and, indeed, would be overreaching to inject or manufacture a defense that the facts as related do not bear out. The specific verbiage, while perhaps ill-taken, does not suggest prejudicial error.
Other issues raised on appeal relate to admission of evidence and failure of defense counsel to object to leading questions. While the complaining witness did not specifically identify the gun and money *97 as those involved in the hold-up, these pieces of evidence were identified as being in the taxicab at the time of defendant's arrest. We cannot hold that they were the fruits of an illegal search and seizure. Testimony bears out fully that the arrest, taking place as it did about a half hour after the hold-up, less than 3 blocks from the scene, in response to a radio report, was based on probable cause and is legal. The admission of the gun and money appears to have been well founded and failure to object thereto, either in advance or at trial, does not cause reversible error, nor does the failure to object to leading questions.
The final contention relating to admission of testimony about the show-up in which defendant was identified is deemed not well-taken. See United States v. Wade (1967), 388 US 218 (87 S Ct 1926, 18 L Ed 2d 1149), and Stovall v. Denno (1967), 388 US 293 (87 S Ct 1967, 18 L Ed 2d 1199).
Affirmed.
All concurred.
[*] Circuit Judge, sitting on the Court of Appeals by assignment.
[1] CLS 1961, § 750.529 (Stat Ann 1969 Cum Supp § 28.797).
[2] CL 1948, § 768.20 (Stat Ann 1954 Rev § 28.1043).