
    PEOPLE v. COLLINS
    1. Criminal Law — Eight to Counsel — Prospective Application..
    Eight of criminal suspect to be represented by counsel at lineup, decided to be a constitutional right by the Supreme Court of the United States on June 12, 1967, is to be applied only to lineups occurring after that date.
    2. Same — Appeal and Error — Evidence—Missing Witness — Due Diligence.
    It is not error for the trial judge to excuse the nonproduction of a missing witness for the people, where the prosecutor has made a showing of due diligence in locating the witness.
    Beferences for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law §§ 313, 314,
    [2] 58 Am Jur, Witnesses § 8.
    Appeal from Becorder’s Court of Detroit, Gillis (Joseph A.), J.
    Submitted Division 1 December 17, 1968, at Detroit.
    (Docket No. 3,692.)
    Decided December 31, 1968.
    C. J. Collins was found guilty of unarmed robbery. Defendant appeals.
    Affirmed.
    
      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cabalan, Prosecuting Attorney, Samuel J. Torina, Chief Appellate Lawyer, and Arthur N. Bishop, Assistant Prosecuting Attorney, for the people.
    
      Thomas B. Wells, for defendant on appeal.
   Per Curiam.

Defendant was found guilty of unarmed robbery (CL 1948, § 750.530 [Stat Ann 1954 Rev § 28.798]) on September 21, 1966, following a nonjury trial before Recorder’s Judge Joseph A. G-illis. The defendant’s brief on appeal challenges the admissibility of testimony relating to a lineup identification on the grounds that he was not represented by counsel and the lineup was not conducted with sufficient objectivity. The brief also contends that the trial court erred in excusing the nonproduetion of a missing witness whose name was indorsed on the information. The people have filed amotion to dismiss or affirm (GCR 1963, 817.5).

The questions raised are so unsubstantial as to need no argument or formal submission. The right to be represented by counsel at a police. lineup applies only to lineups occurring subsequent to June 12, 1967, the date of United States v. Wade (1967), 388 US 218 (87 S Ct 1926, 18 L Ed 2d 1149). See Stovall v. Denno (1967), 388 US 293 (87 S Ct 1967, 18 L Ed 2d 1199); People v. Wilson (1967), 8 Mich App 651; People v. Schrader (1968), 10 Mich App 211. The manner in which the lineup was conducted in this case was not so unnecessarily suggestive or conducive to irreparable mistaken identity as to constitute a denial of due process. Stovall v. Denno, supra, 388 US 293, 302. The trial court did not err in excusing nonproduction of the missing witness considering the showing of due diligence made. People v. Woods (1966), 5 Mich App 356; People v. Kern (1967), 6 Mich App 406.

Affirmed.

Levust, P. J., and T. G. Kavanagh and Quinn, JJ., concurred.  