People v. Thomas

190 N.W.2d 250, 33 Mich. App. 664, 1971 Mich. App. LEXIS 1821

Opinions

Lesinski, C. J.

Defendants, George Thomas and Thomas Grant, were tried jointly and convicted by a jury of armed robbery. MCLA § 750.259 (Stat Ann 1971 Cum Supp § 28.797). They appeal as of right from a denial of their motions for new trial.

On November 15, 1966, two men robbed the clerk of City Wide Cleaners at gunpoint. They were seen leaving the store by an 11-year-old boy who provided police with a description of the car in which they escaped and the first three digits of the license plate number. Eight hours later police officers observed a car matching that description with the same first three digits on the license plates. They arrested the driver, defendant Thomas, and drove the car to the precinct station where a warrantless search revealed a pistol concealed under the dashboard.

Defendant Grant was arrested on a warrant issued after Thomas, while denying participation in the robbery, told police he spent the day with Grant. Both defendants were subsequently identified at separate showups by the victim of the robbery.

Defendants’ first assignment of error concerns the propriety of the search of the car and the ad mission into evidence of the seized pistol. While the search at the police station cannot properly be said to be incident to the arrest, Preston v. United States (1964), 376 US 364 (84 S Ct 881, 11 L Ed 2d 777), we affirm the trial court’s ruling that the police had probable cause to stop a car matching the description of the wanted vehicle and arrest the driver. Immediate search of the automobile at the scene would have been permissible. Carroll v. United States (1925), 267 US 132 (45 S Ct 280, 69 L Ed 543, 39 ALR 790); People v. Miller (1970), 26 Mich App 665. It was not unreasonable to take the car to the police station to perform the search where the probable cause factor still obtained and the mobility of the car threatened potential loss of evidence. Chambers v. Maroney (1970), 399 US 42 (90 S Ct 1975, 26 L Ed 2d 419). We find no error.

Defendants next claim that the conduct of the showups was so suggestive and conducive to mistaken identification as to violate due process of law. Stovall v. Denno (1967), 388 US 293 (87 S Ct 1967, 18 L Ed 2d 1199).

The victim testified that she told police that the men who robbed her were between 5'9" and 5'10" tall. Defendant Grant, who is 6'5" tall, was identified by this witness in a lineup of other men whose heights were 5'4", 6T", 5'9-l/2", and 5'5" respectively. Defendant Thomas, who is 6'4" tall, was similarly identified from a lineup of four other men who were between 5'7" and 5T1" tall. Since both defendants were considerably taller than the description of the wanted men, whereas the others in the lineup more closely resembled the descriptions, it is difficult to see how defendants could have been prejudiced by the showups. We note that no objection was made below to the introduction of the identification testimony and that both defense counsel elected to utilize the disparity of height between the descriptions given and defendants’ actual height to their advantage in arguments to the jury. We find no error.

During the course of the trial, a police officer investigating the robbery testified that:

“A. I had Mrs. Mans come into the station and I made a warrant request and I took Mrs. Mans and myself to police headquarters, to request a warrant for George Thomas. Mrs. Mans and I, we stopped at the Robbery — B and E Bureau and I showed her some pictures and she—

“Mr. Harris: Just a minute, I would ask that the jury be excused, if the court please.

“The Court: All right, the jury will step out.”

Defense counsel’s objection was that if testimony showed the witness identified defendants from “mug shots” it would show defendants had prior criminal records. The objection was sustained. The record does not indicate that any pictures of either of the defendants were shown to the witness, or that identification was made as a result of such procedure. Contrary to defendants’ claim, there was no mention of prior criminal convictions before the jury. We find no prejudice resulted.

The defense advanced by both defendants at trial was alibi. Upon arrest, defendant Thomas told police he and Grant were attending to details of the funeral for Thomas’ recently deceased uncle during the time of the robbery. The use of this exculpatory statement at trial forms the basis of defendant Grant’s claim that his rights to confront and cross-examine the witnesses against him were violated within the meaning of Bruton v. United States (1968), 391 US 123 (88 S Ct 1620, 20 L Ed 2d 476).

In Bruton, the Supreme Court held that incriminating extra-judicial statements of a nontestifying codefendant are constitutionally inadmissible in evidence at a joint trial, irrespective of any instructions limiting their use to only the codefendant. In Roberts v. Russell (1968), 392 US 293 (88 S Ct 1921, 20 L Ed 2d 1100), the Supreme Court declared Bruton retroactive and applicable to the states.

In the instant case, defendant Thomas’ statement placed him with Grant at the time of the robbery, but was intended as an alibi. Bruton and Roberts both dealt with confessions and accusations of guilt. Defendant Grant neither attempted to controvert the statement nor sought an instruction limiting its use to Thomas. Instead, they both affirmatively relied on the statement, and the testimony of others, to prove their alibi defense. Under the circumstances, we hold that the use of the statement at trial did not “present a serious risk that the issue of guilt or innocence may not have been reliably determined”. Roberts, supra, 295; People v. Cartwright (1970), 26 Mich App 687.

As a basis for their motions for new trial, defendants claimed they had new evidence in support of their alibi defense in the form of a witness whose testimony would place defendants at a funeral home at the time of the robbery. When it was shown that this witness was known to defense counsel at the time of trial and was present in the courtroom during trial, the trial judge ruled that her testimony did not meet the test of newly discovered evidence.

New evidence must be newly discovered, not merely cumulative, such as to render a different result probable on retrial, and of such kind and character that it could not have been produced at trial with the exercise of reasonable diligence. People v. Keiswetter (1967), 7 Mich App 334. The trial judge did not abuse his discretion in ruling that the testimony of a witness known to defense counsel and present at trial was not new evidence.

Defendants’ remaining assignments of error concern jury instructions given by the trial judge. Since no objections were raised on the issues below, defendants are precluded from claiming error on appeal. People v. Dexter (1967), 6 Mich App 247; People v. Bradshaw (1969), 16 Mich App 348.

Affirmed.

R. B. Burns, J., concurred.