PEOPLE
v.
CARTWRIGHT
Docket No. 7,720.
Michigan Court of Appeals.
Decided September 30, 1970. Leave to appeal denied December 31, 1970.Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Thomas R. Lewis, Assistant Prosecuting Attorney, for the people.
Arthur J. Tarnow (Defenders' Office Legal Aid and Defender Association of Detroit), for defendant on appeal.
Before: V.J. BRENNAN, P.J., and McGREGOR and AGER,[*] JJ.
Leave to appeal denied December 31, 1970. 384 Mich. 792.
*690 V.J. BRENNAN, P.J.
Defendant William Cartwright, along with a codefendant, Lawrence Gulley, was tried and convicted by a jury on July 19, 1967, of breaking and entering an occupied dwelling with intent to commit larceny. MCLA § 750.110 (Stat Ann 1970 Cum Supp § 28.305). The facts relevant to his four assignments of error are summarized as follows:
Around 4:30 in the afternoon of January 16, 1967, Mrs. Ethel Paige was standing near the front window of her house on Field Street in Detroit when she saw two Negro men walk up the stairs to the porch of a house across the street, force the door, and enter. She telephoned the police immediately. One of the policemen who responded to her call, Officer Stewart, saw a young Negro man, wearing a dark coat, jump the fence and run off down the alley just as he approached the house in question. Officer Stewart pursued the man, but unsuccessfully, and radioed the squad cars in the area to be on the lookout for a Negro man wearing a dark jacket.
Some minutes later, Officers Donald Grode and Warren Golubosky, who had heard Stewart's radio call while patroling the neighborhood in their squad car, saw two young Negro men, one about 50 feet ahead of the other, walking along a residential street about three blocks west and four blocks north of the scene of the crime. One of them defendant Gulley was wearing a black leather jacket. The officers passed by slowly and then pulled to the curb and stopped the men, who by this time were walking abreast. Officer Golubosky opened the encounter by asking whether they had been together. Both replied that they had. Noticing that Gulley was breathing rapidly, Officer Golubosky asked them whether they had been running. Both denied that *691 they had, but when Golubosky put a hand to Gulley's chest and felt a rapid heart beat, Gulley admitted that he had, but only for the last half block or so. Gulley, along with the other man, defendant Cartwright, was then placed under arrest, informed of his rights under Miranda v. Arizona,[1] and taken to the scene of the crime. While there, Cartwright and Gulley were observed by Mrs. Paige as they sat in the back seat of the squad car. Mrs. Paige was not asked at the time to identify the two men.
The first assignment of error concerns Mrs. Paige's observation of the defendant and Gulley while they were sitting in the squad car. The defendant contends that her observation amounts to a confrontation "so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law," Stovall v. Denno (1967), 388 U.S. 293 (87 S. Ct. 1967, 18 L. Ed. 2d 1199), and, that therefore, allowing her in-court identification, said to be tainted by the observation, was error.
From a review of the record, we conclude that the defendant has not sustained his burden of showing that the confrontation amounted to a denial of due process of law. Although face-to-face confrontations, as opposed to lineups, are to be discouraged, they are not per se unconstitutional. Stovall v. Denno, supra. The accused must show something more than just the fact of the face-to-face confrontation. People v. Floyd (1968), 15 Mich. App. 284; Russell v. United States (1969), 133 US App DC 77 (408 F2d 1280), cert. den. (1969), 395 U.S. 928 (89 S. Ct. 1786, 23 L. Ed. 2d 245). In the instant case, Mrs. Paige testified unequivocally that she enjoyed a full view of the burglars as they entered *692 the house and that Cartwright and Gulley were the burglars. The credibility of her testimony was a question for the jury, People v. Nugent (1969), 21 Mich. App. 58, and the jury, after hearing the cross-examination and argument by the defense, resolved the question against the defendant. There was no error.
At the trial, Officer Golubosky related Gulley's and Cartwright's statements that they had been together. Defense counsel immediately objected to the admission of any statements made by Cartwright and Gulley during the encounter and moved for a mistrial, citing Miranda v. Arizona, supra. The jury was excused and a hearing was conducted to determine the applicability of Miranda. Following the hearing and oral argument, the court denied the motion and ordered Golubosky to begin his account of the arrest anew but (inexplicably) without reference to the statement "yes, we have been together." The officer began again, this time omitting the statement, and testified that both men, when asked, denied that they had been running but that Gulley admitted that he had been running when the answer was challenged with a hand on his chest.
In his second and third assignments of error, the defendant renews his objection to the use of these statements and cites Bruton v. United States (1968), 391 U.S. 123 (88 S. Ct. 1620, 20 L. Ed. 2d 476) along with Miranda. We conclude that neither of these cases requires reversal of his conviction.
The trial court was correct in ruling Miranda inapplicable. The warning requirement of Miranda is expressly limited to custodial interrogation:
"The principles announced today deal with the protection which must be given to the privilege against self-incrimination when the individual is *693 first subjected to police interrogation while in custody at the station or otherwise deprived of his freedom of action in any significant way." 384 U.S. 436, 477 (86 S. Ct. 1612, 16 L. Ed. 2d 694, 10 ALR3d 974).
The statements in the instant case were elicited during an investigatory street encounter by officers who had not drawn their pistols or otherwise physically deprived the defendant of his freedom in any significant way and who had not yet announced an arrest. The defendant's rights under Miranda had simply not attached when the statements were made. See People v. Gilbert (1967), 8 Mich. App. 393; People v. Rogers (1968), 14 Mich. App. 207; People v. Robinson (1970), 22 Mich. App. 124.
In Bruton, decided some ten months after Cartwright was convicted, the Supreme Court held that incriminating extrajudicial statements of a non-testifying codefendant are constitutionally inadmissible in evidence at a joint trial, irrespective of any bench instructions limiting their use to the codefendant. In Roberts v. Russell (1968), 392 U.S. 293 (88 S. Ct. 1921, 20 L. Ed. 2d 1100), the Court declared Bruton to be retroactive and applicable to the states. See People v. Shirk (1970), 383 Mich. 180; People v. Spells (1969), 16 Mich. App. 609.
The codefendant in the instant case, Gulley, did not take the witness stand. (Nor did defendant Cartwright.) The statements are somewhat damaging to Cartwright in that 1) they place him together with Gulley at the time of the burglary to make a team of two when a team of two burglars was sought; and 2) they show that Gulley and Cartwright lied when first questioned. Yet, while the testimony relating these statements may arguably fall within the Bruton rule, it cannot be regarded as subject to the rule's retroactive application.
*694 In Roberts, supra, 294, 295, the Court made clear the reason for retroactive application:
"Despite the cautionary instruction, the admission of a defendant's confession which implicates a codefendant results in such a `serious flaw.' The retroactivity of the holding in Bruton is therefore required; the error `went to the basis of fair hearing and trial because the procedural apparatus never assured the [petitioner] a fair determination' of his guilt or innocence.
* * *
"And even if the impact of retroactivity may be significant, the constitutional error presents a serious risk that the issue of guilt or innocence may not have been reliably determined."
None of the statements in question, unlike those in Bruton and Roberts, even approximates a confession or an accusation of guilt. Two of them "Yes, we have been together" and "No, we have not been running" were attributed to the defendant himself. Yet the defendant neither attempted to controvert the statements nor sought an instruction limiting their use to Gulley. The third statement, while not Cartwright's, was an assertion that was established by means other than Gulley's words. Officer Golubosky testified that Gulley was breathing rapidly, that his chest was heaving and that his breath was short as it condensed in the cold air. One could reasonably conclude independently of the third statement that Gulley had indeed been running. In short, admission of the three statements did not "present a serious risk that the issue of guilt or innocence may not have been reliably determined."
In his final assignment of error, the defendant complains of the following remarks of the prosecuting *695 attorney, made in reply to the closing argument of Gulley's trial counsel:
"Now, to Mr. Harris [trial counsel], there seems to be a very important question as to why I didn't ask Officer Stewart, `Do you see that man in court?' Well, if it was such a very important question and if it left such an imprint on Mr. Harris' mind that he argued it so much to you, let me ask the question: Why didn't Mr. Harris ask the police officer, `Do you see that man in Court?' It is another ruse."
These remarks were apparently designed to counter any implication that the absence of an in-court identification by Officer Stewart was due to an inability on his part to match the face of either Gulley or Cartwright with the known face of the fleeing burglar. Officer Stewart, in relating the chase through the backyard, did not suggest that he was able to view the burglar's face. Indeed the strong implication of his testimony was that a view was not possible under the circumstances. Thus his failure to identify the burglar in court, along with the prosecuting attorney's failure to ask him to identify either defendant, is of little significance. For that reason, the rhetorical question of the prosecuting attorney was not only harmless, but constituted permissible rebuttal to the argument of defense counsel. Compare People v. Humphreys (1970), 24 Mich. App. 411.
Affirmed.
All concurred.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
[1] (1966), 384 U.S. 436 (86 S. Ct. 1602, 16 L. Ed. 2d 694, 10 ALR3d 974).