Opinion
Docket No. 6,015.
Decided June 24, 1969. Leave to appeal denied March 24, 1970. See 383 Mich. 772.
Appeal from Recorder's Court of Detroit, Robert A. DeMascio, J. Submitted Division 1 June 4, 1969, at Detroit. (Docket No. 6,015.) Decided June 24, 1969. Leave to appeal denied March 24, 1970. See 383 Mich. 772.
Willis Walton and Charlie White were convicted of breaking and entering a business place with intent to commit a larceny therein. Defendants appeal. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Samuel J. Torina, Chief Appellate Lawyer, and Patricia J. Pernick, Assistant Prosecuting Attorney, for the people.
Carl Levin (Defenders' Office — Legal Aid and Defender Association of Detroit), for defendants on appeal.
BEFORE: HOLBROOK, P.J., and McGREGOR and BRONSON, JJ.
Defendants, Willis Walton and Charlie White were convicted before the recorder's court for the city of Detroit sitting without a jury of the crime of breaking and entering a business place with intent to commit a larceny therein. MCLA § 750.110 (Stat Ann 1968 Cum Supp § 28.305).
The record discloses that a building had been broken into and that defendants were apprehended while fleeing that building. An eyewitness testified that defendants were the men he saw handing materials from out of the building. Defendants were found guilty by the court and were sentenced January 3, 1968, to prison terms of from 7 to 15 years. On January 16, the trial judge realized that the correct maximum term for the crime was 10 years instead of 15 years as he stated when sentencing the defendants the same day. He amended the sentences and commitments nunc pro tunc to provide maximum terms of 10 years. Defendants made a motion for a new trial. This motion was denied and defendants appealed. Three issues are presented which we restate and discuss in order.
1. Did the trial court's correction by order nunc pro tunc of those portions of the sentences which were in excess of the statutory maximum in the absence of the defendants and their counsel constitute reversible error?
This issue is governed by the indeterminate sentence statute, CL 1948, § 769.8 (Stat Ann 1954 Rev § 28.1080):
"When any person shall hereafter be convicted for the first time of crime committed after this act takes effect, the punishment for which prescribed by law may be imprisonment in the State prison at Jackson, the Michigan reformatory at Ionia, the State house of correction and branch of the State prison in the upper peninsula, the Detroit house of correction, or any other prison, the court imposing sentence shall not fix a definite term of imprisonment, but shall fix a minimum term except as hereinafter provided. The maximum penalty provided by law shall be the maximum sentence in all cases except as herein provided and shall be stated by the judge in passing sentence. He shall before or at the time of passing such sentence ascertain by examination of such convict on oath, or otherwise, and by such other evidence as can be obtained tending to indicate briefly the causes of the criminal character or conduct of such convict, which facts and such other facts as shall appear to be pertinent in the case, he shall cause to be entered upon the minutes of the court."
The statute governing an excessive sentence is CL 1948, § 769.24 (Stat Ann 1954 Rev § 28.1094), which reads as follows:
"Whenever, in any criminal case, the defendant shall be adjudged guilty and a punishment by fine or imprisonment shall be imposed in excess of that allowed by law, the judgment shall not for that reason alone be judged altogether void, nor be wholly reversed and annulled by any court of review, but the same shall be valid and effectual to the extent of the lawful penalty, and shall only be reversed or annulled on writ of error or otherwise, in respect to the unlawful excess."
The indeterminate sentence statute requires the court to set a minimum term and then to state the maximum as set by statute. In the present case the minimum was properly set by the court. The only defect present in the sentences and commitments was the failure of the court to properly state the maximum term of 10 years set by statute. The statement of the maximum term in the sentences and the commitments was a ministerial act and was legally corrected by the order nunc pro tunc. Under the facts in this case, we cannot understand how any of defendants' constitutional rights are violated. The case of People v. Theodorou (1968), 10 Mich. App. 409, cited by defendants is not applicable because there the original sentence was invalid under CLS 1961, § 769.9 (Stat Ann 1968 Cum Supp § 28.1081). In the present case the sentences were valid sentences under the indeterminate sentence statute even though the trial court erroneously stated the maximum term because the correct maximum is read into every sentence by force of law.
In re Pardee (1950), 327 Mich. 13, 17; In re Allison (1948), 322 Mich. 491, 494; In re Richards (1907), 150 Mich. 421, 426.
2. Did the trial court commit reversible error by not offering defendants or their counsel access to the presentence reports or in the alternative to summarize at the time of sentence the contents of the reports?
This issue was withdrawn by counsel for defendants with the permission of the appellee and the Court at the hearing on oral argument.
3. Was the prosecuting attorney's introduction of testimony regarding threats against the State's witness when there existed no evidence to connect defendants to such threats so prejudicial to defendants that it constitutes reversible error?
The following is the testimony referred to above:
"Q. Since this time has anyone contacted you in regard to this case?
"A. One night I got a telephone call that I would have my head blown off before this come up to court.
"Q. Someone told you that by telephone?
"A. By telephone.
"Q. I just thought his Honor may want to hear that. No further questions."
The admission of this testimony was error. 22A CJS, Criminal Law, § 633, pp 486, 487.
The trial judge stated in his ruling on the motion for new trial that had there been a jury the admission of this testimony would have been reversible error:
"The motions [ sic] are based principally upon certain colloquy between the people's principal witness and the prosecuting attorney. The colloquy would be considered prejudicial if it occurred in the presence of the jury. But in view of the fact that this was a trial to the court, this court is confident that the colloquy meant nothing and went unnoticed."
In People v. Davison (1968), 12 Mich. App. 429, this Court considered the effect of the admission of testimony without objection during a non-jury trial, in the context of reversibility on appeal. The Court stated as follows (p 432):
"If evidence be offered that is palpably inadmissible and irretrievably prejudicial to a defendant a trial judge should not let it in, even though no objection be made. On review we have a similar duty, in that if we observe the presence of such evidence in the record we may not let an unfair trial stand because no objection was made. Ordinarily, only in those cases where the evidence is so erroneous as to reduce the trial to a sham (see People v. Ibarra, 60 Cal.2d 460 [ 34 Cal.Rptr. 863; 386 P.2d 487]), or to result in incurable and fatal prejudice to defendant (see People v. Holmes, 292 Mich. 212) will a reviewing Court find reversible error in the admission of evidence not properly objected to at the time of trial."
In the instant case there was ample legal evidence upon which the trier of the facts could determine the defendants' guilt. In People v. Winegar (1968), 380 Mich. 719, 733, Mr. Justice BRENNAN stated:
"In this case, the court concluded, and stated on the record that he found the plea to be freely, understandingly and voluntarily made. This meets the test of a constitutionally valid plea. The court could not have concluded that the plea was understandingly made without satisfying himself that the defendant understood the nature of the accusation and the consequence of his plea. We will not presume judicial incompetence or negligence."
In view of the statement of the trial judge concerning this improper testimony, we are constrained to rule that the trial judge did not consider the objectionable testimony in determining guilt or innocence. For these reasons, we determine that after an examination of the entire cause it does not affirmatively appear that the error complained of has resulted in a miscarriage of justice. CL 1948, § 769.26 (Stat Ann 1954 Rev § 28.1096).
Affirmed.