*1 1974]
PEOPLE v HAMPTON Opinion op the Court Law—Privilege Against 1. Criminal Self-Incrimination—Instruc- Jury—Defendant’s Choice. tions to cautionary A defendant is entitled choose whether a instruc- guilt tion that no inference of arises from the defendant’s given testify Law—Privilege Against 2. Criminal Self-Incrimination—Instruc- Jury—Defendant’s Choice—Appeal tions to and Error. Instructing jury that a no inference of arose from defend- testify ant’s failure to over defense counsel’s reversible where defense counsel was case, trying his first criminal and the trial desirous of error, avoiding attempting protect rights. 3. Criminal Law—Witnesses—Identification—Pretrial Confron- tation—Right to Counsel—Due Process. pretrial sponta-
An inadvertent confrontation at which witness neously prosecutor deny identified defendant to the did not rights defendant his Sixth and Fourteenth Amendment inherently suggestive counsel and the confrontation was not so irreparable process and conducive to misidentification that due was denied. Law—Identification—Photographic Display—Inde- 4. Criminal pendent Basis. reappearance A photographic display, in a when persons’ photographs recurred, other also and his lone hatted picture, hatless, impermissi- when all others were not so were bly suggestive substantial likelihood of mistaken arose, especially identification supported when the record [3] [1, 2, [4] 21 Am Jur 21 Am Jur 21 Am Jur 2d, 2d, References Criminal Law Criminal Law 2d, Criminal for Points Law 356. §§ §§ 222, 334, 336, § in Headnotes 341. App 52 indepen- had sufficient finding identification the in-court dent basis. *2 by Burns, J. B.R. Against Law—Privilege Self-Incrimination—Instruc- 5. Criminal Jury—Defendant’s Choice. tions request a to refuse defendant’s a It was error for instructing defendant’s failure to a refrain from request coupled testify was where the with a own behalf in his calling wanted to avoid explanation the defense clear silence, where the and attention to 507.5). (GCR 1963, never withdrawn Ager, Appeal Washtenaw, Jr., F. William from 11, 1973, 2 December Division J. Submitted 16914.) (Docket Lansing. Decided March No. uttering Hampton Harry convicted of and L. appeals. publishing forged Af- Defendant a check. firmed. Kelley, Attorney General, Robert A.
Frank J. Delhey, Derengoski, General, F Solicitor William Prosecuting Attorney, Salan, F. Assist- and John people. Prosecuting Attorney, for the ant Appellate Moran, Michael C. Assistant State Defender, for defendant. J.,P. R. B. Before: J. H. and Burns and Gillis,
R. H. JJ. Campbell,* The R. H. defendant was convicted Campbell, uttering forged publishing a a of 750.249; MSA check. MCLA 28.446. Kroger employee informed
A store in Ann Arbor supervisor just presented her defendant had * sitting assignment. Appeals by on the Court Circuit of Court belonging check and identification a former The defendant employee. becoming suspi- store with the check cious left the store and identifica- alerted supervisor tion. The then other area Kro- ger subsequently presented stores. Defendant employee check an alerted another Kroger supervisor. supervi- store and she notified her That questioned police. sor and called the escaped from the The defendant store minus the supervisor check and identification. The pursued parking into the store’s lot and obtained license number the automobile in which de- The departed. police fendant discovered that registered license number was to defendant’s brother. Kroger employees identified the defendant
from photographic array which included pictures *3 of defendant’s two brothers.
Defendant first that the claims court erred in giving cautionary instruction over defendant’s objection that no inference of arises from defendant’s failure to take the stand. The choice is People v defendant’s. 29 Mich App 558; 185 NW2d 634 App 329;
Mich
(1972); Bohm, Mich App
No error arises if the defense knows the court intends to so instruct and fails object.
Taylor, App 174;
The issue is factual as to whether defendant objected. At the close of proofs the and outside the presence of the jury, indicated the instructions that he going give to the jury. One of these an concerning fact that the jury was to draw no adverse infer- against ences from the mere fact defendant had privilege against exercised his self the witness take stand. and incrimination requested the court refrain counsel1 Defense giving The trial instruction. such from offering replied: experience of his the benefit Well, feels all difference the court [sic] "The Court: given, this should be counsel, feels the court cases, have had in these we experience from court specifically necessary jury instruct the that it is feels against any way hold the defend- they cannot that ant, If feel this, is the stand. this taken that he’s not apprised of if they to be jury for the necessary instruction, might they well discuss this receive didn’t against the hold it jury in the room this that Now, basing I’m this on he the stand. didn’t take many had discussions times experience, we have past juries and the court persons have served on who with jurors the fact that do impressed with been has I cases to heart. don’t in criminal instructions take just and do turn around will believe I believe this court instructs them. opposite what the fine, county especially in this are account, true—juries would take this into intelligent people who would persons instructions. have judge’s We follow the would seated good backgrounds, varied but on this And, they’ll represented I feel in this education Anything on the instruc- instruction. further follow this tions, Feltkamp?” Mr. replied: defense counsel To which I do have a motion.” "Not in the instructions. proper give a *4 did in fact instruc- The trial concerning jury tion to the to jury testify. At of the instruc- the conclusion any judge if there were tions the trial asked requested objections to or instructions additional given. responded: Defense counsel 1 trying first Defense counsel was his criminal case. questions objections.” and no
"I have no further failed continue objection Defense counsel his regarding the instruction failure to He not make known to the testify. objected that he still the giving In Hunt Deming, instruction. particular 581, 662, 584-585; (1965), 663-664 objections jury it was held that instructions only appellate be saved for would review where requests has ruled on and objec- the before they given tions to instructions are and where counsel voices objection the record after the instructions have given been to Hunt According to the such procedure complied must be according 1963, to GCR 516.1 and 516.2. Co,
In Healy Goodwin S A 300, 305; 755, (1970), 174 NW2d objected counsel to a proposed jury instruction. The trial in- structed jury contrary to counsel’s objection objection and no by made instruction given as court. Because no made, Goodwin Hunt upon relied and said: "We appellant’s conclude that assign- ment of regard such is not properly before 300, 306; us”. 383 Mich 174 NW2d Assuming arguendo gave the trial court objection, over defense we do not think reversible error arose in the context of this case. First we note the unequivocal language past Pruitt, cases. In Mich App (1970), the court held that a defendant’s right not part stand of "the law applicable to the case meaning within the 768.29; MCLA 28.1052, MSA provides which part:
"The court shall instruct as to the law *5 App 71 * * * . The failure of the court to the case applicable ground not be of law shall any point
instruct unless such instruction is verdict setting aside the requested by the People See accused.” 533, 535 329, 333; the instruction. entitled The defendant 17, 23; 107 NW 718-719 Provost, 144 Mich to refuse the instruc- no discretion There is give Pruitt, it is error. and refusal tion supra. avoiding error, desirous trial
The rights, protect attempting not instructing commit reversible arose from defendant’s no inference stand. argues Next, that the in-court identifi- employees denied defendant his two cation rights to coun- Fourteenth Amendment Sixth and alternatively confrontation claims He sel. inherently suggestive and conducive to was so process irreparable that due was misidentification argu- context, defendant’s In factual denied. this Parenthetically, we do sub- ments lack merit. scribe objection, prosecutor’s no "no error” to the theory. neither defendant nor his Since later, much until aware of confrontation impossible. mo- trial Defendant’s complied proce- sufficiently tion with for new requirements. dural
Hearing testimony that defendant established present in court for and his counsel were prose- opening came of trial. Two witnesses present and be office to discuss the case cutor’s charge during jury police officer selection. go and look for the witnesses downstairs asked passer. and re- the check ported One witness returned seeing no He in the office one. remained Opinion of the Court they witness until other were called for both selection. witnesses While were standing elevator, company near the in the of the assistant *6 upstairs came prosecutor, defendant and walked the courtroom. One witness toward spontaneously prosecutor. identified defendant The other identify time, witness did not subsequently nor was able to identify she defend- facts, these ant court. Given the witnesses’ viewing happenstance. was mere The identification care trilogy2 police-induced, circumscribed with California, v Foster arranged confrontations. 394 1127; 440; 89 22 L Ed Griff (1969); US S Ct 2d 402 (CA Fitzharris, v 9, 1971); 451 F2d 151 United Jackson, (CA 1971). States v 448 F2d 963 pretrial inadvertent confrontation detailed here is Ballard, Wade’s ambit. United States v not within (CA 9, 1969); People Yacks, v 418 325 F2d 49 Mich (1973). 444; App 212 249 NW2d Defendant’s reappearance the photographic display, when other persons’ recurred, photographs picture, and his lone hatted when all others were hatless, were not so impermissibly suggestive that substantial likelihood mistaken identifi- event, cation arose. In any .supports record finding that the in-court identifications had suffi- Maniez, cient independent v basis. 34 Mich 55; People Hutton, App (1971); 190 21 App 312; Mich (1970); 175 860 NW2d Anderson, 155; 389 Mich
Finally, defendant contends that different classi- fications for bills exchange bills, and bank which result in varying imprisonment terms, are arbitrary distinctions lacking reasonable relation 2 Wade, 218; 1926; United States 388 US 87 S 18 Ct L Ed 1149 2d (1967); California, 263; 1951; Gilbert v 388 US 87 S Ct 18 L Ed 2d Denno, 293; 1178 1199 1967; Stovall v 388 US S87 Ct 18 L Ed 2d App 71 Burns, J. R. B. Brooks, 43 Mich People v purpose. the statutory (1972), 715; 204 NW2d
App (1973), 210 NW2d Peace, 79; App 48 Mich equal protection viola- no found adopt, which we tion.
Affirmed. Gillis, J., concurred. H. P.
J. (dissenting). I must dissent. Burns, B. R. People v (1971), was error held presump- that no to instruct
trial court is to arise from the adverse to the tion take the witness stand fact that he did mere defendant. of the over the *7 case, it apparent became when present In the intended to mention defend- the trial judge silence, re- timely right of defense ant’s refrain from instruct- the trial quested that testify in failure to ing coupled request behalf. This his own it. The of the reason behind explanation clear attention to de- calling to avoid defense wanted the re- refused fendant’s silence. The explanation of the motives quest gave refusal. behind the to refuse
It was error request. People v GCR supra. was never withdrawn. objection 1963, 507.5 states: Unnecessary. exceptions to rul- "Exceptions Formal unnecessary. It is suffi-
ings or orders of the court are ruling party, the time or order cient that a sought, to the court the court is made or makes known or his he the court the action which desires Burns, R. B. objection to the action the court and his grounds therefor; and, party if a has no opportunity to object ruling or made, order at the time the absence of does not thereafter prejudice him.”
I would reverse and remand for a new trial.