Opinion
Docket No. 10561.
Decided November 26, 1971.
Appeal from Monroe, James J. Kelley, Jr., J. Submitted Division 2 November 2, 1971, at Detroit. (Docket No. 10561.) Decided November 26, 1971.
Anthony C. Williams was convicted of armed robbery. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James J. Rostash, Prosecuting Attorney, and John R. Whitehouse, Chief Assistant Prosecuting Attorney, for the people.
Patricia Costello, for defendant on appeal.
Defendant was tried by a jury and found guilty of armed robbery, MCLA 750.529; MSA 28.797.
On appeal defendant contends that the trial court erred in allowing the prosecution to present certain witnesses after the prosecution allegedly had stipulated that they would not be produced. The record does not convincingly support the defendant's contention. The only evidence of such a stipulation to which this Court's attention has been drawn by the defendant is the statement of the trial judge reconstructing what occurred at a pretrial conference:
"It then appeared that the defendant, through counsel and individually, waived the production of these two witnesses at the trial and thereafter the court said therefore the people will not produce these witnesses and the statement was made by the prosecutor, the assistant prosecutor, `That's right'."
The witnesses in question were accomplices to the crime. The prosecution, at the time of the pretrial conference, had these witnesses indorsed, but sought a waiver of their production from the defendant because of the fear that these witnesses would exercise their privilege against self-incrimination and thus not benefit the prosecution's case. As the trial judge's statement acknowledges, such a waiver was given and the prosecution then indicated that the prosecution did not intend to call these witnesses.
On the day of the trial, one of the witnesses proved willing to waive his privilege against self-incrimination in order to testify against the defendant. The trial court offered the defense time to consult with the witness and the defense counsel did speak to him in private for 15 minutes. Defendant's present claim of surprise and bad faith by the prosecutor is thus without merit. People v. Burnstein, 261 Mich. 534 (1933). See, also, 22A CJS, Criminal Law, § 498(c), pp 162-164.
Defendant's second claim is that in an armed robbery charge the prosecution must show that the victim of the robbery had a possessory interest in the goods taken. This was properly answered below by citing the case of People v. Needham, 8 Mich. App. 679 (1967). Defendant's attempt to distinguish the present case from Needham is also without merit, the money here having been taken "in the presence" of one whose "right to possession was certainly greater than that of his assailant".
Defendant's third issue, that the trial court erred in not giving an instruction as to lesser included offenses, also fails to impress us since the facts of this case are indistinguishable from the facts of People v. McCormick, 28 Mich. App. 550 (1970), and People v. Membres, 34 Mich. App. 224 (1967). In these cases it has been held that such an instruction is not required where the evidence does not support a lesser crime than the one charged.
Defendant's final appeal is that the sentence was a denial of justice and tantamount to cruel and unusual punishment, the defendant being only 19 years of age at the time and having no previous criminal record. Armed robbery carries a possible sentence of life, or any term of years, imprisonment. The sentence given was within the statutorily prescribed limits and will not be overturned on appeal. People v. Richardson, 25 Mich. App. 117 (1970); People v. Rodgers, 30 Mich. App. 582 (1971).
We finally note that a number of these issues were not properly briefed on appeal. Normally issues not properly briefed on appeal are considered to be abandoned. Grove v. Story Oldsmobile, Inc, 31 Mich. App. 613 (1971). In doing justice to the defendant, we have nonetheless considered these issues and have found no reversible error. Therefore, the judgment below is affirmed.