People v. LaTeur

39 Mich. App. 700 (1972) 198 N.W.2d 727

PEOPLE
v.
LaTEUR
PEOPLE
v.
HOBART

Docket Nos. 9576, 9727.

Michigan Court of Appeals.

Decided April 24, 1972.

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

James A. Sullivan, for defendant LaTeur on appeal.

Robert S. Wisok (George Stone, of counsel), for defendant Hobart on appeal.

Before: R.B. BURNS, P.J., and HOLBROOK and QUINN, JJ.

Leave to appeal applied for.

R.B. BURNS, P.J.

Defendants were convicted by a jury of armed robbery.^[1]

Approximately 12 hours after the robbery had taken place the defendants were arrested and their vehicles searched. A warrantless arrest and search must be supported by "probable cause".^[2] The existence of probable cause depends upon the facts and "peculiar circumstances confronting the arresting officer". People v Harper, 365 Mich. 494, 501 (1962). See also People v Surles, 29 Mich. App. 132, 135 (1970). The peculiar circumstances confronting the arresting officers in this case are, the defendants allege, insufficient to establish probable cause.

We have reviewed the testimony and find the circumstances confronting the arresting officers prior to the arrests were more than adequate to support probable cause to arrest. Prior to defendants' arrests, the police knew that the Cadillac driven by defendant LaTeur was often seen in the same vicinity as the Chevrolet driven by defendant Hobart. The police were informed that the Chevrolet was stolen and that the Cadillac's registration was fraudulent. The police had the descriptions of the holdup men and their vehicle. The defendants resembled the descriptions given of the holdup men and the vehicle description matched the Chevrolet driven by Hobart. In addition the police observed items being taken from the Chevrolet and placed in the Cadillac's trunk immediately prior to the arrests. A man of "reasonable prudence and caution" would determine that the arrestees had committed a felony. People v Harper, supra, p 501.

The subsequent search of defendants and the automobiles in their immediate possession was also proper. Chambers v Maroney, 399 U.S. 42; 90 S. Ct. 1975; 26 L. Ed. 2d 419 (1970); People v Wenrich, 31 Mich. App. 644 (1971); People v Miller, 26 Mich. App. 665 (1970).

During the course of trial, a revolver, a pair of handcuffs, and an attache case were introduced into evidence. All three items had been seized from the defendants' possession at the time of their arrests. Prosecutorial disclosure of these items, defendants claim, was prejudicial and, given their irrelevancy, reversible error. We cannot agree with this assertion. The sole eyewitness to the robbery was handcuffed to a laundry tub in the basement of the home and although the revolver was not identified as being involved in the crime, a pistol was used by at least one of the defendants. The possession of articles necessary to commit the crime has probative value and the articles are admissible when sufficiently connected with the accused. People v Gregory, 130 Mich. 522 (1902); People v Mason, 29 Mich. App. 613 (1971); People v Kerridge, 20 Mich. App. 184 (1969). See also Banning v United States, 130 F2d 330 (CA 6, 1942), cert den 317 U.S. 695; 63 S. Ct. 434; 87 L. Ed. 556 (1943), and United States v Ramey, 414 F2d 792 (CA 5, 1969). The attache case was mentioned only because it contained the handcuffs. We do not consider its introduction prejudicial.

Defendants' arguments on lack of counsel at the pretrial lineup assume a fact clearly contradicted by the record on appeal. Defendants were represented by counsel at the lineup.

Defendants cite no authority for their proposition that a judge must inform a criminal defendant who is standing trial that he has a right to take the stand and testify in his own behalf. Indeed, there is none, and we see no compelling reason to provide any. The defendants were well represented by their attorneys at trial level. The decision to testify or not should be made by the defendant and his counsel, and counsel, we must presume, is well aware of his defendant's right to testify.

Were defendants denied their constitutional rights to a speedy and proper appeal? A six-to-eight month delay in the appeals of defendants' cases resulted when the court reporter failed to supply a complete transcript of the trial proceedings. Eventually defendants' appellate counsel were provided with the full transcript.

The "procedural detour" encountered by defendants does not necessitate a new trial. People v Gorka, 381 Mich. 515, 520 (1969). We are not constitutionally compelled to free defendants from custody.^[3] As was stated in People v Lorraine, 34 Mich. App. 121, 122 (1971), "The remedy for dilatory review is review itself".

Defendants raise the following five questions in connection with the jury instructions:

(1) Did the trial court err in failing to instruct the jury on the lesser included offenses of larceny and various types of assault?

(2) Did the trial court err in failing to define "larceny", an essential element of armed robbery?

(3) Did the trial court err in giving an instruction on aiding and abetting?

(4) Was it error for the trial court sua sponte to instruct the jury on the failure of defendants to take the stand?

(5) Did the trial court err when it failed to provide defendants an opportunity to object to the jury instructions?

We resolve these issues in the same order they appeared.

1. The right to instructions on lesser included offenses depends upon the evidence. People v Jessie Williams, 14 Mich. App. 186 (1968). A total lack of evidence to support the theory of a lesser included offense justifies a court's refusal to so instruct. People v Reaves, 21 Mich. App. 153 (1970); People v Martin #1, 21 Mich. App. 207 (1970). In this case undisputed testimony established that the robbers who took the goods were armed with a dangerous weapon, thus the sole question was whether defendants were the armed robbers. See People v Kolodzieski, 237 Mich. 654 (1927).

2. Larceny is one of the essential elements of an armed robbery charge.^[4]People v Needham, 8 Mich. App. 679 (1967). The statutory offense of larceny^[5] is defined as stealing property belonging to another. People v Anderson, 7 Mich. App. 513 (1967); People v Calvin, 60 Mich. 113 (1886). The court instructed the jury that an armed robbery conviction must be predicated upon a finding, among other things, that the accused stole property belonging to another. The instructions sufficiently informed the jury as to the element of larceny.

3. Unlike defendants' cited case of People v Ware, 12 Mich. App. 512, 516 (1968), there was "substantive proof to justify" the additional theory of aiding and abetting. By statute every person who "procures, counsels, aids, or abets" in an act constituting a criminal offense is guilty as a principal.^[6] Thus, even though only one of the defendants was seen holding a dangerous weapon, both defendants could be found guilty of "armed" robbery under this statute. In People v Dawson, 32 Mich. App. 336 (1971), evidence indicated two men were acting together in committing the crime. In Dawson, as in this case, the aiding and abetting instructions were proper.

4. The trial court instructed:

"Now, in this case the defendants have not taken the stand. Under our law the defendants may take the stand or elect not to do so. When they do not take the stand in their own behalf, counsel has no right to comment on it, nor has the court any right to comment about it, and you have no right to take that into consideration in any manner in arriving at your verdict. It is their right to take the stand, or they may elect not to do so, as they shall choose and you are not in any sense to construe that against them."

The instruction was unobjected-to and not prejudicial. It has been previously held by this Court that such an instruction is not error. People v James Thomas, 27 Mich. App. 637 (1970); People v Hill, 27 Mich. App. 322 (1970); People v Carter, 28 Mich. App. 83 (1970); People v Abernathy, 29 Mich. App. 558 (1971); People v Labadie, 30 Mich. App. 393 (1971). We should also note that the preferred words of "election" and "choice" instead of "failure" to take the stand were utilized by the trial court. See People v Henry, 37 Mich. App. 160 (1971).

5. The record on appeal does not disclose whether or not the trial judge gave, as GCR 1963, 516 requires, the defendants an opportunity to make objections to the instructions. However, failure to provide such an opportunity doesn't preclude defendants from objecting to the instructions as given. No objections were made. In any event, we have reviewed and ruled upon all of defendants' questions pertaining to the instructions; thus no harm has resulted from the procedural error.

Our review of the records and briefs in this case convinces us that the jury's verdict was not against the weight of the evidence. The defendants were identified as the armed felons by the eyewitness and several articles later identified as being part of the loot taken in the holdup were found in the defendants' possession at the time of their arrests.

Defendants other allegations of error are without merit.

Affirmed.

All concurred.

NOTES

[1] MCLA 750.529; MSA 28.797.

[2] A police officer must have reasonable cause to believe the arrestee has committed a felony. MCLA 764.15; MSA 28.874. People v Sansoni, 10 Mich. App. 558 (1968); People v Wolfe, 5 Mich. App. 543 (1967).

[3] Dowd v United States, ex rel Cook, 340 U.S. 206; 71 S. Ct. 262; 95 L. Ed. 215 (1951); Grayson v Montgomery, 421 F2d 1306 (CA 1, 1970).

[4] Larceny, it has been said, is the least important element of armed robbery. People v Dumas, 161 Mich. 45 (1910).

[5] MCLA 750.356; MSA 28.588.

[6] MCLA 767.39; MSA 28.979.