PEOPLE
v.
CASTELLI.
Docket No. 463.
Michigan Court of Appeals.
Decided June 13, 1967. Leave to appeal denied November 20, 1968.*3 Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Samuel H. Olsen, Prosecuting Attorney, Samuel J. Torina, Chief Appellate Lawyer, and Luvenia D. Dockett, Assistant Prosecuting Attorney, for the people.
Walter A. Kurz, for defendant.
Leave to appeal denied November 20, 1968. See 381 Mich. 787.
J.H. GILLIS, J.
On March 26, 1964, Dick and Lou's Bar located in the city of Detroit was robbed by two armed, masked men. While they were lining up the customers in the bar, a mask worn by one of the gunmen slipped off his face. Officers assigned to the case were furnished a description of one of the armed men by the bar owner, a customer, the barmaid and others. The barmaid, who had checked his identification during the prior week, supplied the police with defendant Rudolph R. Castelli's[1] name.
The following day (Good Friday), at approximately 1:25 p.m., defendant was arrested without a warrant in the city of Highland Park, Michigan, by Detroit police officers. Defendant was taken to the Highland Park police department, registered as a fugitive and turned over to the arresting officers. The police then went with the defendant to his residence where the apartment caretaker opened defendant's door. Defendant did not give his consent for this entry. At the apartment a diagram of Dick and Lou's bar was seized. Later the same day, the defendant was identified in a police lineup as being one of the armed holdup men and allegedly made several incriminating statements later admitted into evidence at trial.
A warrant was issued on Saturday, March 28, 1964. Additional incriminating statements were *4 allegedly made on Easter Sunday, March 29, 1964, which were subsequently admitted into evidence at trial. On Monday, March 30, 1964, the defendant was arraigned on the warrant. A jury trial commenced on October 7, 1964, and resulted in defendant's conviction for armed robbery.[2]
On appeal defendant raises 48 allegations of error, the first of which being that his inculpatory statements should have been suppressed as they were made without an attorney being present and without first being informed of his constitutional right to remain silent. The trial court in ruling on the motion to suppress the statements accepted the police officer's testimony that the defendant did not request an attorney. This Court has recently held that the mandate enunciated in Escobedo v. Illinois (1964), 378 U.S. 478, 491 (84 S. Ct. 1758, 12 L ed 2d 977)[3] requires that there must be a request for counsel and a denial of same. People v. Hoffman (1965), 1 Mich. App. 557. See, also, People v. Gant (1966), 4 Mich. App. 671; People v. Griffin (1966), 4 Mich. App. 604; People v. Limon (1966), 4 Mich. App. 440; and People v. Fordyce (1966), 378 Mich. 208.
The trial court's finding of fact that there was no request for, and denial of, counsel is not "clearly erroneous" and will not be disturbed by this Court. GCR 1963, 517.1. In the present case since the court *5 determined as a question of fact that no request for counsel was made, it is not crucial that the police officers failed to inform the defendant of his constitutional right prior to their questioning. See Griffin, supra. It is perhaps significant to point out the dates in the instant case in view of the fact that Johnson v. New Jersey (1966), 384 U.S. 719 (86 S. Ct. 1772, 16 L ed 2d 882), determined that the effects of Miranda v. Arizona (1966), 384 U.S. 436 (86 S. Ct. 1602, 16 L ed 2d 694), would only be applied to trials commencing after June 13, 1966.
Defendant also contends that these statements were obtained during an illegal detention and were inadmissible under the doctrine set forth in People v. Hamilton (1960), 359 Mich. 410. The record discloses that defendant uttered inculpatory statements on two separate occasions, first on the date of his arrest shortly after he was taken to the Detroit police headquarters, and second on Easter Sunday, March 29, 1964. The record does not support the defendant's contention that these statements were involuntarily extracted. The first statement was made on the 27th in the presence of three officers, all of whom testified at trial. As the first officer began his testimony, defense counsel objected and the trial court excused the jury and made a separate record pertaining to the admissibility of such statement. The court ruled that the statements were admissible and we find no error in such determination. Defendant, however, contends that a separate record should have been made prior to the testimony of the remaining two officers. The record discloses that no objections were made as to the admissibility of these statements which were substantially the same as those the court had already determined were admissible and allegedly uttered while the three officers were present.
*6 The second inculpatory statement, made by the defendant on March 29, 1964, was brought before the jury by the testimony of a fourth police officer-witness.
After the people rested their case defense counsel renewed his previous motions to suppress. The court denied this motion "for the same reasons as enunciated before in the court's ruling on the previous motions to suppress." In this previous ruling the court determined, in essence, that the detention was not an unnecessary delay done for prolonged, interrogatory purposes without proven justification, but rather the delay was proper in view of the factual situation. The record does not indicate that this determination constituted reversible error.
In the prosecutor's opening statement to the jury he set forth what he alleged would be established by the evidence presented at trial. He mentioned to the jury the fact that the evidence would disclose that a diagram of the bar was found in the defendant's apartment. Defendant had filed no motion to suppress this evidence prior to trial, but subsequently during the course of the trial moved to suppress all evidence seized at defendant's apartment. The court granted the motion to suppress. Defendant now complains that in view of the subsequent granting of his motion to suppress, reversible error was committed when the prosecutor made mention of the evidence in the opening statement to the jury. The court carefully instructed the jury that the prosecutor's statement was not to be considered as evidence and was only a statement of what the people intended to establish at trial. He emphasized that they would be required to base their decision on the proofs presented at trial. The defendant could have alleviated this problem by filing a motion to *7 suppress the evidence prior to trial. We find no reversible error under these circumstances.
A multitude of other issues are raised on appeal, but an examination of the record in this case fails to establish grounds for reversal.
Affirmed.
LESINSKI, C.J., and HOLBROOK, J., concurred.
NOTES
[1] For another episode in the life of defendant, see People v. Castelli (1963), 370 Mich. 147.
[2] CLS 1961, § 750.529 (Stat Ann 1954 Cum Supp § 28.797). REPORTER.
[3] "Where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied `the assistance of counsel' in violation of the Sixth Amendment to the Constitution as `made obligatory upon the States by the Fourteenth Amendment,' * * * and that no statement elicited by the police during the interrogation may be used against him in a criminal trial."