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03/09/76 PEOPLE v. ALMOND

March 9, 1976

PEOPLE
v.
ALMOND



Appeal from Oakland, Richard D. Kuhn, J.

D. E. Holbrook, Jr., P. J., and D. E. Holbrook and T. M. Burns, JJ.

SYLLABUS BY THE COURT

1. -- Evidence -- Prior Criminal Records -- Witnesses -- Unresponsive Remarks.

Unresponsive testimony of a complaining witness which implied that a defendant's accomplice had a prior criminal record, in a trial for armed robbery, kidnapping, and rape, did not deny the defendant a fair trial where (1) the testimony was an inadvertent and unanticipated answer to a proper question which was stricken from the record, and the jury was instructed to disregard it, (2) the accomplice took the stand and admitted having been convicted of a crime on one prior occasion, and the jury was instructed that such testimony could only be used to test credibility, and (3) the complaining witness's testimony concerned the res gestae, a part of the very transaction for which defendant and his accomplice were being tried.

2. -- Constitutional Law -- Miranda Warnings -- Initial Silence -- Waiver of Rights.

A defendant's statement to police was given voluntarily, although the defendant had remained silent when he was given his Miranda warnings at an earlier time, where the defendant was again given his Miranda warnings before the statement was made and he waived his rights thereunder.

3. -- Sentencing -- Appeal and Error.

The Court of Appeals may not substitute its judgment for that of the trial court as to what constitutes a proper sentence for a particular offender where the sentence is within statutory limits.

4. -- Sentencing -- Constitutional Law -- Equal Protection -- Due Process.

A disparity in sentences given to two co-defendants does not violate the right to due process and equal protection of the law where the culpability of the defendants was not the same and the disparity in sentences was not based on an arbitrary classification.

The opinion of the court was delivered by: Holbrook

Leon Almond was convicted of armed robbery, kidnapping and rape. Defendant appeals by leave granted.

Leon Almond, defendant, was charged with armed robbery, MCLA 750.529; MSA 28.797, kidnaping, MCLA 750.349; MSA 28.581, and forcible rape, MCLA 750.520; MSA 28.788. He was tried before a jury and convicted on all three counts on June 21, 1974. On August 6, 1974, defendant was sentenced to concurrent terms of life for the armed robbery conviction and for the forcible rape conviction, and imprisonment for a term of from 40 to 60 years for the kidnaping conviction, with 134 days credit given for time served in jail. Defendant appeals.

Defendant's accomplice, Curtis Thompson, was tried with the defendant, having been charged with armed robbery and kidnaping. The jury was unable to reach a verdict as to Thompson, and the court declared a mistrial in the Thompson case. Thompson was later permitted to plead guilty to an added count in the information of unarmed ...


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