Opinion
Docket No. 16184.
Decided March 5, 1974.
Appeal from Lenawee, Kenneth G. Prettie, J. Submitted Division 2 January 8, 1974, at Lansing. (Docket No. 16184.) Decided March 5, 1974.
Virgil Williams was convicted of forgery and uttering and publishing. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Harvey A. Koselka, Prosecuting Attorney (Prosecuting Attorneys Appellate Service, Donald Ubell, Director, by Howard C. Marderosian, of counsel), for the people.
Allan C. Miller, Assistant State Appellate Defender, for defendant.
Before: QUINN, P.J., and DANHOF and ALLEN, JJ.
Defendant was convicted by the court sitting without a jury of the crime of forgery and uttering and publishing contrary to MCLA 750.248; MSA 28.445 and MCLA 750.249; MSA 28.446. He was sentenced to a term in prison of 5 to 14 years and appeals, alleging several errors.
Defendant was initially convicted of the same charges upon a plea of guilty on December 15, 1970. Subsequently, on May 23, 1972, the plea of guilty was set aside and the defendant was rearraigned on the original charges. Upon defense motion the matter was remanded to the district court for a preliminary examination. The preliminary examination was commenced on June 22, 1972, and upon motion of the prosecutor was adjourned to July 11, 1972. The defendant alleges that error was committed by the district judge in granting the people's motion for adjournment, because the prosecutor brought the prior invalid guilty plea to the attention of the district judge. In examining the record we find that the only purpose for bringing this to the attention of the district judge was to reinforce the prosecutor's request for adjournment. In addition, the prosecutor pointed out that a material witness whom he expected to be present was absent from the state and could not be produced at the June 22, 1972 hearing. Adjournment of a preliminary examination for a good cause is in compliance with the statute. MCLA 766.7; MSA 28.925. People v Den Uyl, 320 Mich. 477; 31 N.W.2d 699 (1948). People v Spalding, 17 Mich. App. 73; 169 N.W.2d 163 (1969). We do not believe that the district judge abused his discretion in granting the adjournment. Nor do we believe that the circuit judge erred in refusing to quash the information because the district judge had been made aware of an invalid guilty plea transcript. People v Ramsey, 385 Mich. 221; 187 N.W.2d 887 (1971), is not applicable because the district judge did not sit as a trier of fact to determine guilt or innocence. He determined only if an offense had been committed and if there was probable cause that it was committed by the defendant.
Defendant next alleges error because the circuit judge who had previously accepted the plea of guilty sat on the defendant's motion to quash the information. We would point out that it was the same circuit judge who after accepting the plea of guilty set the same aside. Furthermore, there was no motion to disqualify the judge, nor do we believe that there was any requirement that he disqualify himself sua sponte. Thus, the matter has not been properly preserved for appeal.
Defendant next claims that the trial court erred by allowing the testimony of a res gestae witness whose name did not appear on the copy of the information given to the defendant, but appeared on the information filed with the court. While several questions are raised as to why the name of the witness appeared on the court's copy and the prosecutor's copy but not on the defendant's copy, we note from the record that the defendant was well-aware that the witness would be called to testify. Further, the court file was available to both parties, and although the defendant objected to the appearance of the witness he made no motion for a continuance, nor did he claim surprise. The record shows defense counsel conducted a very thorough and exhaustive cross-examination of the witness. Thus, we find no prejudice or reversible error by allowing the witness to testify. People v Gilleylen, 31 Mich. App. 416; 188 N.W.2d 131 (1971).
Defendant next claims that pretrial photographic identification procedures violated his rights under the Sixth Amendment to the United States Constitution. In this case there were two pretrial photographic identification showings. The first took place prior to the defendant's arrest and prior to the time he was in custody. No error is alleged. The second, however, took place in July of 1972 after defendant's arrest and after formal charges were filed, when a series of pictures were presented to two witnesses and identification was made of the defendant. At least as to the testimony of witness Dermyer, it is doubtful that she had any independent recollection of the defendant apart from the photographic identification. Defendant relies on People v Anderson, 389 Mich. 155; 205 N.W.2d 461 (1973), which held that there is a right to have counsel present at a photographic identification of the accused if defendant is in custody. We must determine whether this Court is bound by the holding in Anderson. In Anderson the Supreme Court in referring to Kirby v Illinois, 406 U.S. 682 (1972), stated at p 170; 205 N.W.2d at 467:
"Kirby v Illinois, 406 U.S. 682; 92 S Ct 1877; 32 L Ed 2d 411 (1972), modifies only part of the per se exclusionary rule of Gilbert. In a plurality opinion the per se exclusionary rule was held not to apply to testimony concerning `pre-indictment' out-of-court corporeal identification procedures. Since there is no agreement by a majority of the United States Supreme Court regarding the limitation of right to counsel in Kirby, we are not permitted to follow Kirby as authoritative precedent on the question of counsel. The clear rule in Michigan is that a majority of the Court must agree on a ground for decision in order to make that binding precedent for future cases. If there is merely a majority for a particular result, then the parties to the case are bound by the judgment but the case is not authority beyond the immediate parties." (Emphasis added.)
Further at p 171; 205 N.W.2d at 467-468, the Court stated:
"Applying these well-settled constructional mandates to Kirby we see that a majority of the Court agreed on a result only, that the per se exclusionary rule of Gilbert did not apply to the case before them. There was no `opinion of the Court', but the `judgment' of the Court was to affirm the Illinois Court of Appeals. The most liberal construction of these rules might suggest that the Kirby case `holds' that the per se exclusionary rule of Gilbert does not apply in `pre-indictment' cases. Constitutional rules of construction do not permit us to read Kirby as abrogating the pre-indictment requirements for counsel and the other rules of Wade, Gilbert, Stovall and Simmons, by all of which we are still bound."
Examining Anderson in the light of the above, we note initially that only five Justices participated in the Anderson case. Further, Justice SWAINSON concurred in the result only. In addition, while then Justice BRENNAN signed the majority opinion he made it very clear in a concurring opinion as to just what his signature implied. He stated:
"My Brother's opinion concludes:
"`Because of this evidence of the victim's knowledge before the suggestion took place viewed in combination with her previous acquaintance with defendant, we are satisfied that her in-court identification was accurate in spite of the employment of grossly suggestive procedures calculated (albeit unintentionally) to prompt an identification of whatever Indian was pictured.'
"Despite careful study, I can see no difference between that conclusion and the conclusion reached by the learned judge of the Court of Appeals:
"`An examination of the record in the present case discloses that while the procedures followed in the photographic display were suggestive, they were not impermissibly so in light of complainant's prior opportunities to view defendant.'
"This, then, is the rule of law in the case, both in the Court of Appeals and in this Court.
"Where the victim was acquainted with her assailant, and described him to the police, and was in critical condition in the hospital, it was not error to permit an in-court identification of the defendant to be made, despite evidence that the defendant was the only Indian among six persons whose photographs were shown to the victim at the hospital.
"The balance of my Brother's opinion, though scholarly and exhaustive, neither adds nor detracts from the rule of law in the case.
"If a Court is to avoid burdening the profession with confusing seriatim opinions, it is necessary for the Justices to ingest much unpalatable dicta. Accordingly, I have signed my Brother's opinion. But, if our opinions are to be of any value as precedent, they should be limited to the enunciation of those rules of law which are decisional, related to the facts in the case before us, and supportive of the result arrived at." 389 Mich at 220-221; 205 N.W.2d at 494-495.
Thus, it appears clear to us, based upon what is described as the clear rule in Michigan, that a majority of the Court did not agree on the ground for decision in Anderson and hence it is not authority beyond the immediate parties. However, in any event the opinion in Anderson indicates that we are bound by the decisions of the United States Supreme Court in Wade, Gilbert, Stovall, and Simmons. Accordingly, if we are bound by the above named decisions then we are likewise bound by the decision of the United States Supreme Court in United States v Ash, 413 U.S. 300; 93 S Ct 2568; 37 L Ed 2d 619 (1973). In that case Justice Blackmun writing for a majority of the Court stated:
"We hold, then, that the Sixth Amendment does not grant the right to counsel at photographic displays conducted by the Government for the purpose of allowing a witness to attempt an identification of the offender." 413 US at 321; 93 S Ct at 2579; 37 L Ed 2d at 633.
In Ash the witness was shown the pictures shortly before trial, long after the defendant had been indicted and was in custody. In short, this was an extension of Kirby, supra, which although not signed by a majority of the Court at that time was clearly affirmed by the majority of the Court in Ash. See Ash, supra, 413 US at 303; 93 S Ct at 2570; 37 L Ed 2d at 623, fn 3. Hence because we are bound by the pronouncements of the United States Supreme Court as it affects those rights guaranteed by the United States Constitution and because People v Anderson, supra, is not authority beyond the immediate parties, we conclude that on the basis of Ash, supra, that the photographic identification by the witnesses, albeit after the defendant was in custody and after formal proceedings had been instituted, did not violate his rights under the Sixth Amendment of the Constitution of the United States.
Finally, defendant argues that the trial judge improperly considered two prior convictions which he claims are invalid because of United States v Tucker, 404 U.S. 443; 92 S Ct 589; 30 L Ed 2d 592 (1972). Although the record does not disclose that the trial judge explicitly relied on such prior convictions, the so-called invalid convictions cannot be raised on this appeal. People v Gavin, 50 Mich. App. 743; 213 N.W.2d 758 (1973).
Affirmed.
All concurred.