Opinion
Docket Nos. 6,565, 6,840.
Decided October 28, 1970.
Appeal from Recorder's Court of Detroit, Joseph A. Gillis, J. Submitted Division 1 May 5, 1970, at Detroit. (Docket Nos. 6,565, 6,840.) Decided October 28, 1970.
Ronald R. Smith, James H. Pritchett, and Eddie Henry Ringo were convicted of assault with intent to rob, being armed. Defendants appeal. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Robert A. Reuther, Assistant Prosecuting Attorney, for the people.
Kenneth A. Webb, for defendants on appeal.
The defendants herein were tried together and found guilty of assault with intent to rob, being armed. CL 1948, § 750.89 (Stat Ann 1962 Rev § 28.284). The defendants appeal their convictions.
Testimony established that the offense charged was committed. Defendants Pritchett and Ringo were identified as the two armed participants, while the third defendant was identified as a person who, shortly before the commission of the offense, bought a package of cigarettes and then left the store where the robbery occurred.
After defendant Smith was arrested, he made a statement to police which, after a Walker hearing, was introduced as evidence against defendant Smith.
People v. Walker (On Rehearing, 1965), 374 Mich. 331. (As to voluntariness of defendant's statement.)
Defendant Smith, on appeal, contends that the trial court erroneously characterized his statement to the police as an "admission", which gave the impression to the jury that the defendant had admitted guilt. Although the court once did refer to defendant's statement as an admission, no objection was made and this failure to object precludes raising the issue on appeal. Furthermore, a reading of the trial transcript, which shows the context in which the word admission was used, indicates that the word contained no inference that the court had concluded that the defendant admitted guilt.
Defendants Pritchett and Ringo claim they were denied their right of confrontation of the witnesses, as secured by the 6th Amendment and made applicable to the states. Pointer v. Texas (1965), 380 U.S. 400 ( 85 S Ct 1065, 13 L Ed 2d 923). During the trial, defendant Smith's statement, which defendants Pritchett and Ringo claim inculpated them, was introduced in evidence against Smith. Bruton v. United States (1968), 391 U.S. 123 ( 88 S Ct 1620, 20 L Ed 2d 476), held that the admission of a non-testifying codefendant's statement implicating a defendant at a joint trial constituted a denial of the right to confrontation when there is no effective way to cross-examine the codefendant regarding the statement.
Smith's statement did not inculpate the other co-defendants. The trial court properly made deletions in Smith's statement of all reference to the names of any codefendants. In fact, the statement does not show that there were any other persons involved in the commission of the crime and in no way served to implicate the other defendants. People v. Patton (1968), 15 Mich. App. 198, 201; Bailey v. United States (CA 10, 1969) 410 F.2d 1209; United States v. Gregg (CA 7, 1969), 414 F.2d 943.
At the close of the people's proofs and in the presence of the jury, the court made the following inquiry:
"All right, we will take them in the order they are sitting. Does the defendant Ringo have any defense?"
Defendant Ringo now contends that, inasmuch as he did not testify at the trial (although the other two defendants, Smith and Pritchett, took the witness stand in their own behalf), this inquiry by the court constituted an adverse comment as to his failure to testify. Griffin v. California (1965), 380 U.S. 609 ( 85 S Ct 1229, 14 L Ed 2d 106). The people contend that the record indicates the question was asked merely to determine whether Ringo proposed to present any testimony.
At no time did defense counsel offer any objection to this inquiry, although defendant's trial attorney had, contemporaneously with this inquiry, objected to another matter and asked the court to excuse the jury. After reviewing the record and considering the time and context in which the statement was made, coupled with the fact that the trial judge properly charged the jury regarding the people's burden of proof, the presumption of innocence, and defendant's privilege to remain silent, we conclude that there was no reversible error committed. See People v. Hider (1968), 12 Mich. App. 526; see also People v. Waters (1969), 16 Mich. App. 33.
The final error alleged by Ringo and Pritchett was not raised at trial and cannot now be reviewed, in the absence of a miscarriage of justice.
Convictions affirmed.
All concurred.