PEOPLE
v.
KILLEBREW
Docket No. 4,966.
Michigan Court of Appeals.
Decided March 27, 1969.Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Samuel J. Torina, Chief Appellate Lawyer, and Luvenia D. Dockett, Assistant Prosecuting Attorney, for the people.
Kenneth A. Webb, for defendant on appeal.
BEFORE: LESINSKI, C.J., and FITZGERALD and V.J. BRENNAN, JJ.
V.J. BRENNAN, J.
Appellant was arrested as an armed robbery suspect on February 24, 1967, and subjected, the same day, to a lineup. The complainant identified appellant after he was told to put on his hat and coat. Arraignment on the warrant took place February 24, 1967; the preliminary *626 examination, March 6, 1967. Appellant was found guilty of armed robbery[*] on June 22, 1967.
Appellant seeks reversal of his conviction on several grounds. Four relate to the lineup; the last to the arraignment on the warrant.
He asserts the compulsory lineup violated his privilege against self-incrimination. This due-process right does not extend beyond testimonial compulsion. United States v. Wade (1967), 388 US 218 (87 S Ct 1926, 18 L Ed 2d 1149). He maintains his privilege against self-incrimination was abridged by the failure to advise him of his right to refuse to appear in a lineup and the requirement that he put on his hat and coat. Wade, supra, again supplies the answer. He also maintains his right to counsel was violated as he was not represented by counsel at the lineup, nor advised of a right to counsel at that stage. This right, as announced in Stovall v. Denno (1967), 388 US 293 (87 S Ct 1967, 18 L Ed 2d 1199), is only prospective in its application (after June 12, 1967; see People v. Wilson [1967], 8 Mich App 651, 660-662).
Appellant's lack of counsel at the arraignment on the warrant and an alleged failure to advise him of his right to counsel at that stage serve as the basis for the claim that his right to counsel was again violated. This argument presupposes a due-process requirement that the state inform an accused that he may retain counsel, or, in case of indigency, one will be appointed for representation during the arraignment on the warrant. Such a requirement has not been explicitly imposed. See People v. Doran (1967), 6 Mich App 86, 88; Pye, The Warren Court and Criminal Procedure, 67 Mich L Rev 249, 266. The United States Supreme Court decisions (e.g., Miranda v. Arizona [1966], 384 US 436, [86 *627 S Ct 1602, 16 L Ed 2d 694]; Gilbert v. California [1967], 388 US 263 [87 S Ct 1951, 18 L Ed 2d 1178]) indicate, however, that the right to benefit of counsel attaches at "critical" stages of the proceedings. This extension beyond the trial itself is the result of the realization that
"today's law enforcement machinery involves critical confrontation of the accused by the prosecution at pretrial proceedings where the results might well settle the accused's fate and reduce the trial itself to a mere formality." Annotation, 18 L Ed 2d 1426.
Is an arraignment on the warrant a "critical" stage in the law enforcement process? "Critical stage" is understood to mean prosecutorial activity which has some effect on the determination of guilt or innocence which could properly be avoided, or mitigated, by the presence of counsel. An arraignment on the warrant has several functions: it provides formal notice of the charge against the accused; the magistrate informs the accused of his right to counsel and inquiry is made to determine whether he is in need of appointed counsel; the preliminary examination may be waived or set for a certain date; and the arraigning judge may fix bail.
The formal notice and indigency inquiry are not within the fact-finding process. The remaining aspects may remotely effect the outcome, but to that extent, may be cured at subsequent proceedings in which the accused is represented by retained or appointed counsel. There are no evidentiary fruits. In other words, the arraignment on the warrant is not a confrontation where the absence of counsel might derogate the accused's right to a fair trial. At the same time, should counsel's presence be *628 required at this stage as a matter of policy, the criminally accused's right to a speedy arraignment could be substantially impaired.
For these reasons there was no error and the conviction is affirmed.
All concurred.
NOTES
[*] CLS 1961, § 750.529 (Stat Ann 1969 Cum Supp § 28.797).