People v. Joshua

189 N.W.2d 105, 32 Mich. App. 581, 1971 Mich. App. LEXIS 1947

• Court: Michigan Court of Appeals
• Decided: April 22, 1971
• Docket: Docket 9117
• Status: Published

Opinions

Lesinski, C. J.

Defendant, Alfonso Joshua, was convicted by a jury of armed robbery, MCLA § 750.529 (Stat Ann 1971 Cum Supp § 28.797). He appeals as of right alleging illegal search and seizure, prejudicial lineup procedures, and trial error.

Defendant was arrested for a traffic violation. After a routine check at the police station, it was found he was wanted for violation of probation. When a personal search revealed defendant was wearing an empty shoulder holster, the police radioed a call to stop the car and the two occupants with defendant when he was apprehended. A search of the occupants produced a .32-caliber pistol alleged to have been given them by defendant immediately before his arrest.

Defendant was identified as the man who had robbed a shoe store at gunpoint three weeks earlier in three separate lineups by the manager of the store and two witnesses.

Defendant’s first claim of error is that the pistol was improperly admitted into evidence as the fruit of an illegal search of the occupants of the car. Defendant has no standing to complain of the search of the occupants. The immunity from illegal searches and seizures is a personal privilege. “No rights, constitutional or otherwise, are involved when property not under the control of defendant is searched.” People v. Hale (1967), 7 Mich App 127, 132; People v. Goeppner (1969), 20 Mich App 425. We find no error.

Despite the absence of timely objection, we proceed to consider the merits of defendant’s claim that the conduct of the lineup was prejudicial. The guidelines for preservation of this issue below were not available at the time of defendant’s trial in 1967, and the presence of a complete record makes remand for an evidentiary hearing unnecessary. See People v. Childers (1969), 20 Mich App 639, 646.

The conduct of the lineup was not prejudicial. The record reveals that the members of the lineup fairly resembled the description of the robber given by the witnesses. Descriptions of the participants in the showup reveal several members resembled defendant. We conclude that the lineups were not unnecessarily suggestive or conducive to mistaken identification as to deny him due process of law. Stovall v. Denno (1967), 388 US 293 (87 S Ct 1967, 18 L Ed 2d 1199).

The fact that defendant was not represented by counsel at these lineups did not deprive him of due process of law. The rule establishing the right to counsel at that stage of the proceedings was announced in United States v. Wade (1967), 388 US 218 (87 S Ct 1926, 18 L Ed 2d 1149). That decision was only given prospective application. Stovall v. Denno, supra. Since the lineups in the instant case occurred prior to Wade, denial of counsel did not, alone, establish lack of due process.

The suspect described by the witnesses to the robbery wore a blue hooded sweatshirt and put the stolen money into canvas money bags. The prosecutor, in his opening statement, made reference to the fact the search of the vehicle produced a blue hooded sweatshirt and several canvas money bags. At trial these exhibits were not available as evidence and the prosecutor was not permitted to question witnesses regarding these exhibits. No objection to the prosecutor’s remarks was raised at the close of proofs, nor in the motion for new trial. In People v. Fowler (1895), 104 Mich 449, 452, it was said:

“If this statement was made in good faith by the prosecuting officer, and on the trial he found that the proofs did not substantiate the statement, we do not think that, for that reason alone, the conviction should be reversed. The prosecuting attorney may not always find that the proofs will meet the case he expects to make when he makes his opening statement to the jury, and it is not every failure of proof, under such circumstances, that warrants a reversal. In this case the fact was not proved and the jury must be presumed to have based their verdict upon the evidence and not upon the statement of counsel.”

Defendant has not shown, nor has a thorough examination of the record revealed, bad faith on the part of the prosecutor.

The prosecutor’s remark in closing argument that a man who points a gun at another with a demand for money infers, “Your money or your life”, was a reasonable inference from the facts in evidence. The prosecutor is entitled to comment on the evidenee and draw reasonable inferences therefrom. People v. Morlock (1925), 233 Mich 284. We find no error.

Affirmed.

O’Hara, J., concurred.