People v. Carter

1970] v. Carter

PEOPLE CARTER PEOPLE v. BROYLES PEOPLE McCULLY op Opinion the Court 1. Searches and Seizures —Without Warrant —Hot Pursuit— Admissibility. Evidence — police Evidence in a search and discovered seizure without against warrant admissible defendant where the search pursuit and seizure were conducted while hot persons suspected for which crime was plain tried and where the evidence was view of the police. 2. Searches and Seizures —Without Warrant —Hot Pursuit. apartment Search without of an warrant of one the defend- linking ants and seizure of evidence the defendants to the charged murder were not require- violative constitutional ments where the plain evidence was in view of officers, footprints, who had snow, followed made from the place the body victim’s complex found in which apartment defendant’s proceeded located and then had doorway to the apartment, they the defendant’s where spot noticed a made from standing someone’s with there wet shoes. [1-3,18-21] ^[5] [9,10] [11, [13-15] [4,25, ^[17] [6-8, ^{[16] [28] [12]} 5 Am Jur 47 Am 47 Am 53 Am 21 Am 22-24] 26] 53 Am 40 Am Jur 21 Am Jur Jur, Jur, Jur Jur, Am 47 Am 47 Am 2d, Appeal References Jur, 2d, Jur Search and Seizure 52 et Search and Seizure 19. Trial 538. Trial 2d, 2d, Jur, Criminal Jur, 2d, § Criminal Homicide 313. Appeal Search and Seizure 18.§ Search and Seizure 16.§ et56§ and Error for Points Law and Error seq. Law 331. § § § § § 778. § in Headnotes § seq. 806. [Noy 3. Searches Pursuit— Warrant —Hot Seizures —Without Exigencies of Situation. search, a warrant of the by a without discovered Evidence where the defendant apartment was inadmissible defendant’s searches, police officers time of the at home at the was not pursuit persons apartment in hot of entered the who had charged which defendant was of the crime with suspected and, by the suspects there, not had determined that by the building been surrounded search, of had time such police, exigencies the situation were because the make requirement nor to to make the warrant unreasonable imperative. search a warrant without 4. Evidence —Harmless Evidence. Error —Cumulative $1,740 in stolen bank .22 revolver and a caliber Admission ear, murdering the owner of a for defendants’ trial into bills error, robbery, was they later in a bank harmless used illegal an though been even the evidence obtained consisting seizure, evidence and where there was other search ammunition, $2,443 pistol, stolen of a caliber .22 caliber .25 bank, a of the and worn from the sweatshirt size color robber, shoes, paint-covered relevant since the the bank and paint, place spattered because the murder was with in improperly admitted evidence cumulative nature. was 5. Evidence —Harmless Error —Standard. The is improperly admission seized evidence harmless error only finding beyond if there is that the reasonable doubt evidence did not to contribute the defendant’s conviction. 6. and Searches Warrant— Seizures —Automobiles—Without After Arrest. warrant, A an without a sometime search of automobile made poliee custody, legally arrest ear in is after the while the made, provided probable that there was cause have believed the car articles contained the officers were entitled seize; probable must cause have existed at the time originally stopped ear was or seized. 7. Searches Warrant— Seizures —Automobiles—Without

After Arrest. warrant, probable A an without a based on search of automobile custody, be made car must while the is cause owner within reasonable time after the arrest of the made occupant or other- permit; of the as the circumstances vehicle a warrant be wise must obtained. Carter Seizures —Automobiles—Without Warrant— Searches 8. Custody Time. —Reasonable Police warrant defendant’s A search without of the automobile while custody though the car was was unreasonable even probable police had cause search the automobile at the originally time it was where the seized not made days until three after had been the car seized. Trials—Separate 9. Criminal Law — Trials —-Discretion. granting separate for trials criminal defendants is judge (MOLA 768.5). discretion of the trial § Trials—Separate Law — Criminal Trials —Discretion. separate of motions trials not an abuse of Denial discre- charged tion where defendants are with the same crime and implicate is to be used to all the same evidence defend- joint ants in commission crime. Weapon — — —- Murder 11. Homicide Evidence —Murder Stolen Relevancy. Weapon — Allowing testimony gun, that a introduced into evidence in kidnapping trial for defendants’ murder and and found an apartment defendants, of one the had been stolen was error charged; testimony because the was irrelevant the crimes to however, the error was not reversible the error where testi- mony did not imprisoned show that the defendants had been for other activity criminal or that other crimes been com- by mitted the reviewing defendants and where the court con- cluded that the verdicts would not have been different even if testimony had been excluded. Jury Identifying Party. Requesting to 12. Trial —-Instructions — Identifying portion charge having requested by been prejudicial the defendants was not to the defendants where the error occurred the midst of encompassing instructions pages and where properly the instructions informed the jury applicable as to the law. Exculpatory 13. Criminal Law — Statements —Failure to Dis- Evidentiary Hearings close — prosecutor Failure of the to disclose to the defendant a state- by ment possibly exculpating made eodefendant and remanding evidentiary defendant demanded hearing an determine whether the statement was to a proper essential preparation of the defense, though pros- defendant’s even ecutor had, good faith, given the statement to the counsel of one of the codefendants, defendant’s but the defendant did not receive the statement begun. until after the trial had Evidence—Exculpatory Disclosure —Good 14. Criminal Law — Faith. to a Suppression prosecutor of evidence favorable defend- requested ant once the defendant has the evidence violative process guilt or of due where the evidence is material defendant; punishment good bad faith of faith or prosecutor suppression of the evidence is irrelevant. Exculpatory 15. Criminal Law — Statements —Disclosure—Evi- dentiary Hearing. evidentiary hearing An must be held to determine whether the prosecutor’s by a eode- failure to disclose a statement made possible exculpating fendant of the the defend- ant proper preparation was essential to a of the defendant’s defense; hearing prej- if the shows that the defendant was statement, udiced the lack of the a new trial must be held; however, if prejudiced, his con- defendant was not viction is affirmed. by Bronson, Warrant —Constitutional and Seizures —Without 16. Searches Law. necessarily violative without a warrant is not A search require- Amendment; the warrant Fourth certain situations (US 4). Const, Am ment is unreasonable itself to Arrest. 17. Searches Seizures —Incident is not incident to an arrest where A search is not substantially contemporaneous nor with the arrest confined vicinity the immediate the arrest. Pursuit. Warrant —Hot and Seizures —Without 18. Searches apart- an suspected inside pursuing while Police felons officers areas in other or searching to room room ment from hiding reasonably expected to be suspects be could where the their within objects which right certain to seine have a fall faith, good police, in right exists, view; plain also if protec- a present, make suspected to be the believe felons weapons. tive search for Pursuit. Warrant —Hot and Searches Seizures —Without 19. the requirement exception pursuit to the warrant The hot of search provide unlimited an does Fourth Amendment for 4). (US Const, Am Carter and Seizures —Without Warrant —Hot Pursuit— 20. Searches Suspect Present. they apartment though an officers, entered hot even Police felons, must, suspected search with- pursuit in order of legal, apartment to be have believed at the the out warrant of suspected present the were the search that time felons of apartment; sus- became aware that the the once the officers exigency permitted pects apartment, the were not in the longer the search warrant no existed. without Warrant —Hot Pursuit. 21. and Seizures —Without Searches with- apartment evidence and seizure Search of of defendant’s legal the evidence was discovered was where out a warrant searching they police room room moved the from they hotly pursuing, places suspected felons, whom were where hiding where, might at the time the evidence been have reasonably seized, police the to be in the believed was felons apartment apartment; however, search continued of they police and seizure were evidence satisfied of after illegal. apartment that were not in the felons 22. and Seizures —Automobiles—Houses—Constitution- Searches

al Law. automobiles as to searches exists

A constitutional of difference and searches houses. Warrant— Seizures —Automobiles—Without 23. Searches Arrest. After at made automobile an without warrant A search justi- cannot be arrest station some time after defendant’s however, arrest; search can to an as a incident fied probable cause justified existence be the basis of originally stopped. was the time automobile Cause. and Seizures —Automobiles—Probable Searches evidence automobile seizure Search defendant’s probable cause where were without automobile found any the car used in no information crimes, including the one were convicted of. 25. Constitutional Law —Evidence—Harmless Error. Court, a Federal constitutional error can be held before error, harmless must declare a error be able to belief beyond harmless reasonable doubt. Law —Evidence—Cumulative Criminal Evidence —Harmless Law.

Error —Constitutional although illegally evidence, cumulative, Admission obtained prosecution’s was not error where case harmless was woven entirely evidence. circumstantial from Evidence—Weapons—Stolen Weapon 27. Criminal Law — —Rele- vancy. Allowing testify gun to witness admitted into evidence apartment in the one found defendants prejudicial been stolen him was erroneous and where the from murder, were on trial and where the for defendant’s possession gun undisputed testimony because the tended to that the show had either committed the gun property or had received stolen and because theft of testimony was irrelevant. Self-Incrimination—Right Testify. 28. Criminal Law — Not testify A declination at his own trial does not defendant’s any against presumption create the defendant. from Appeal Kent, John H. Yander J.Wal, Sub- mitted Division May 7, at Grand Rapids. (Docket Nos. 6,801, 6,949, 7,293.) Decided November 27, 1970. Leave to appeal granted February 9, 1971. 384 Mich 802.

Jeffrey Carter, Harry Broyles and Howard Mc- Cully convicted murder the course during of a robbery. Defendants Remanded with appeal. instructions as to Carter. Affirmed as Broyles McCully.

Frank Kelley, Robert A. Attorney General, Derengoski, Miller, James K. Solicitor General, Johnston, and Donald A. III, Prosecuting Attorney, Chief Appellate Attorney, people. for

John D. and Thomas 8. Tully Evans, defend- ant Carter on appeal. Carter Cone,

Sherman H. for defendant Broyles on appeal. Fleetwood,

Carl R. for defendant McCully appeal.

Before: J., P. Holbrook, and Bronson and JJ. Munro,* P. J. The defendants were tried

Holbrook, Kent County Court, Circuit a consolidated trial before a and jury, convicted of murder in the of a course robbery1 and kidnapping. Sentences of life mandatory imprisonment were subsequently imposed to each defendant. Their have appeals also been consolidated.

On December 1967, at approximately 1:15 p.m., the automobile of the 67-year-old victim, Emile Osbeek, to alleged have been used by defendants in the perpetration of an armed a robbery of Grand Rapids, Michigan bank. Defendants were not charged with that nor with robbery murder com- mitted the course of the bank robbery. Osbeek had departed from home at 12:30 approximately p.m. and was next at a paint observed and wall- paper store where he other purchased, things, among three gallons white, of paint, beige, grey. Car- rying which he had paint purchased, Osbeek left the store at 12:50 p.m., proceeding approximately in the direction of the lot. parking This was the last time he was seen alive.

At 1:17 approximately p.m., the Osbeek automobile was seen parked short distance from the scene of the bank robbery. Three men emerge were seen to from the car, open trunk and flee on foot. Al-

1 MCLA ^[*] Circuit § judge, sitting 750.316 (Stat on the Court of Ann 1954 Rev Appeals by assignment. § 28.548). subsequently unable to though witness was occupants the automo- identify the defendants as fleeing of the men one able state she was bile, something something one white “had red on”. Eapids police and led were summoned

The Grand p.m. parked at about 1:20 automobile to the Osbeck automobile with had observed the its a man who open body in the trunk. of Osbeck trunk apparently paint had over- The container white paint car, and some in the front seat turned away. Footprints from the led auto- tracked was through light in which tracks snow mobile, apartment a three-unit com- discerned, could be apartments occupied plex. of the One McCully wife; another and his defendant Broyles. occupied by apartments A apartment doorway build- feet inside the few ing paint. spot officer of white an observed officers. than from other officer called for assistance apartment building Upon entering the officers McCully permission from Mrs. obtained suspects finding apartment McCully no but, Directly they upstairs. proceeded in one there, Broyles’ leading door to defendant front of the apartment spot floor that “a on the the officers saw standing someone had been like water if looked receiving They and, shoes”. knocked there with wet continuing apartment, their no entered the answer, pursuit, fleeing suspects. pursuit in While pair of shoes seized a officers, warrant, without paint a red-hooded wet, smeared with white still brown and a sleeve, in the sweatshirt, with a hole containing paper num- the serial in.bills, $943 sack from the bank. stolen matched those bers which apparently that no decided had After the officers they Broyles’ apartment, present in the one was v. Carter called for a crime search team which found a .22- in caliber German revolver a steel cabinet, and wrapped $1,740 stolen bank bills, a cloth, Testimony- a cushion of an under overstuffed chair. only indicated, however, $1,740 was found people they after officers had determined that the gone apartment into the to look for were foregoing there. All of the items were introduced objections by into evidence at the trial over defendants. p.m., Broyles McCully

At 2:20 appeared Rapids at the Grand Hall of Justice to previous being on a be sentenced conviction. After police custody, Broyles and while in sentenced, McCully charged arrested and the Osbeck murder.

Testimony picked up revealed that defendants one McCully’s green Gilmore Welford and white way Buick automobile on the to the courthouse. Upon arriving McCully gave the courthouse, keys requested car Welford the to the him to McCully drive the car to the residence. Welford McCully drove the automobile to a downtown bank proceeded McCully cash a check and then to the apartment. parking nearby, after Welford, the car proceeded up apartment, apparently to the but was prevented by police entering. officers from Welford nearby McCully then drove the automobile to a poolroom, parking automobile across street. Shortly thereafter took into Welford custody as a im- material witness and seized and pounded McCully automobile. charged

Defendant Carter with the instant January although offense on on 1968, arrested December 1967 for an crime. unrelated On December to the 2, 1967, officers returned apartment building seizing with from warrant, a 28 appears

McCully’s apartment to which have $1,500 pistol, and a .25-caliber bank, from the stolen been items were intro- These ammunition. .22-caliber trial. at the duced into evidence days after the Mc- three 4, 1967, December On impounded, Cully was seized and automobile police, a the automobile warrant, searched without cartridges in and .25 caliber and found several .22 glove compartment. likewise, were, These items despite timely objections into evidence introduced suppress. pretrial a motion to theory prosecutor’s During trial, shortly been accosted Osbeck had paint departing that defend- store, from the after get car, trunk of his into the ants forced Osbeck proceeded automobile the Osbeck utilize robbery, perpetration of bank and that Os- suffered heart attack beck, brought trunk, inside the once by fear Since the heart and excitement. during the death occurred attack fatal and robbery, i.e., automobile, theft course of the- first-degree murder. None this constituted the trial. defendants testified at dispositive appeal, are this issues possible, dealt restated and consolidated where are with in order.

I it error admit into evidence all Was police, warrant, without a while items seised apartments pursuit searching sus- defendants’ pected felons? justification Broyles no contends that Defendant search of his residence without existed for the neither warrant on December because 1, 1967, anyone present there nor else was People 93 v. Caetee therefore, no need to search was, to discover hidden nor weapons prevent destruction oí evidence. Defendant brief appeal on in Broyles’ part, states in the search reference to the officers of his apart- ment:

“Upon no one was determining present, they pro- ceeded to search the same, seizing from the money hank, paint shoes with on and them, clothing.” It should he noted that Broyles and Carter the statement of adopt facts contained brief of defendant That brief refers to McCully. the officers’ seizure of numerous items, including shoes, consider, and money, clothing. therefore, We that all relates to oí Broyles’ argument the evidence seized while during of time period the officers were present apartment without a warrant.

The contend on Decem people the seizures 1, ber were 1967, incident lawful reason able for felons of whom the police hot are pursuit; only unreasonable searches 247; v. Gonzales 356 Mich unlawful, (1959), 6 Mapp (81 v. Ohio 367 643 Ct (1961), 1684, US S L 1081); Ed 2d that a search of the type occurred here v. McDonald reasonable, People 13 Mich (1968), App

The search of apartment defendant Broyles’ arrest, incident his 1, 1967, December substantially since the contem search was neither vicin to the immediate poraneous with, nor confined Stoner v. Calif of, the arrest of the defendant. ity L Ed 11 (84 483 Ct 376 US S ornia 2d 856). scope the search was within However, warrant of the “hot to the search pursuit” exception pursuit in the i.e., a search made requirement, felons instrumentalities fruits or fleeing 28 or contraband, as to certain of the crime, evidence Maryland Penitentiary Hayden Warden, seized. (87 782). 18 L Ct Ed 2d US a red-hooded sweatshirt of bills, $943 type and color worn bank robbers, one of paint, shoes covered with still wet when white by police all of officers, found which evidence linked charged defendants to the crime and was seized plain Harris view, within States officers’ v. United (88 L Ed 992, 390 US 234 Ct 2d S suspects 1067), during pursuit the officers’ of the apartment, searching Broyles’ while areas where suspects reasonably could have been found2 were Maryland Warden, in Peni- admissible evidence. Hayden, supra. tentiary v. testimony revealed officers, while pursuit suspects, in

still of the called for the identi- upon fication bureau to come to the scene and that, again apartment arrival, their was checked over. By appears this time it that the officers had made complete people, pursuit a determination that the in gone building, of whom the officershad into the were Additionally, apartment building there. by was, this time, surrounded officers. After arrival identification bureau the officersfound a .22 caliber German in a revolver metal clothes package, and a cabinet, under a the cushion of chair, containing $1,740 in stolen bills. erroneously

The additional items were admitted exigencies into evidence, since the of the situation at the time of their seizure were not such requirement make the warrant nor unreasonable imperative. make the search taken a warrant without Maryland Hayden, supra; Penitentiary Warden, v. 2 The officers noticed marks on shoe the wall and a bar bent clothes beneath door, they opened door, the attic ajar, which the attic was in sack; $943 found in paper they bills found the red-hooded sweat shirt paint-covered a closet and the under a shoes bed. v. Carter (88 Terry 1, 18, Ohio US S Ct 904).3 903, 20 L Ed 2d We 1878; 889, rule, 1868, improperly admitted evidence, however, that i.e., $1,740 bills, the .22 caliber revolver was harm- and its admission nature, cumulative People Kregger (1953), 335 Mich less error. clearly probative than less evidence was Such properly paint-covered with other seized shoes, during pursuit. hot obtained admitted evidence justified proper holding ad- further This seized from items mission into evidence several apartment McCully’s on December pursuant i.e., $1,500 warrant, to a valid wrapped towel, the bathtub found under money appeared bank, from the to have been stolen play pail pistol in a found child’s a .25 caliber top ammu- and .22 caliber closet, of a metal clothes To conclude on a in a bedroom. found chest nition improperly seized evidence that admission finding requires beyond a error harmless did not contribute that the error reasonable doubt Harrington Cali- v. conviction, defendants’ the (89 23 L Ed 1726, 250 Ct S US fornia quantity of 284). nature the and In view of the 2d persuaded properly are admitted, we evidence improperly beyond ad- that the a doubt reasonable probative as value was not of such mitted evidence of the defend- conviction to the to have contributed upon own our based This determination is ants. upon to have and what seems record review the upon impact probable such evidence been the impute average jury. re- cannot an We minds of * * * “ may inception reasonable at its [a] in- its intolerable Fourth Amendment virtue of violate the * * * ‘strietly scope scope. tensity and The of the search must be its ini- justified by’ circumstances which rendered and tied to tiation permissible.” weight improperly seized evidence. versible Harrington supra. California,

II McCully’s Was the search automo- of defendant days bile, McCully a warrant, without three after custody had been arrested and car into taken police, rendering search, an unlawful evidence seized inadmissiblef

The McCully’s warrantless search of defendant days 4, automobile December three after McCully Broyles arrest impounding produced of the car, .22 .25 glove compartment, caliber from ammunition which was admitted into evidence the trial. De- McCully fendant contends that the items seized from subsequently his automobile, and admitted into evi- products illegal dence, were anof search, carried authority out without the of a search warrant and not incident to a lawful arrest, and that the erro- requires neous admission of the evidence seized McCully’s reversal of defendant conviction. people hy asserting upon The counter that, Maroney basis of the recent case of Chambers (90 419), 399 US 42 S Ct 26 L Ed 2d McCully’s the evidence found in defendant automo- properly product bile was admissible as of a reasonable search and seizure. persuades case Chambers this Court that interpretation given

new is to be to the Fourth regards Amendment searches automobiles. pertinent part, In Chambers the facts were stated 44, 45: pp

“During night May 20, 1963, Grulfservice Pennsylvania, station in North Braddock, robbed two men each of whom and dis- carried v. Carter played gun. currency a took robbers the from register; the cash station service attendant, one Stephen place Kovacich, was directed to the coins right glove, in robbers. hand his then which was taken teenagers,

Two who had earlier noticed compact wagon circling a blue station the block in vicinity station, Gulf then saw station wagon away speed parking from a lot close to the they station; Gulf about the same time, learned They the Gulf station had been re- robbed. ported police, immediately, who arrived four wagon wearing men were in the station and one was green police a sweater. told Kovacich that one wearing green of the men who robbed him was a wearing sweater and other was a trench coat. description A of the car and the two robbers was police over the broadcast radio. an hour, Within light compact wagon answering a blue station description carrying stopped by four men was police the Petitioner was one of about two from miles the Gulf station. wagon.

the men the station wearing green He was a sweater and there was a occupants trench coat car. The arrested police and the car was In driven to station. thorough course of a search of the car at the sta- compartment tion, concealed in found (one under the dashboard two .38 caliber revolvers bullets), right glove loaded with dumdum hand containing change, bearing small certain cards Raymond the name of Havicon, the attendant at a McKeesport, Pennsylvania, Boron service station in point gun May who had been robbed pe- In the course of warrant-authorized search petitioner’s day titioner’s home the after arrest, found certain .38 ammu- seized caliber including nition, some dumdum bullets similar to guns those station found one taken from wagon.”

It was there at 49: ruled

“The Court also noted that the search of an auto probable theory proceeds wholly on cause on a dif- justifying ferent from that the search incident to an arrest: “ right validity ‘The to search and the of the dependent right seizure are not on the to arrest. They dependent are on the reasonable cause the seizing officer for belief of has that the contents against automobile offend the law.’ Carroll v. United States ^[1925] 267 U.S.

# # # wagon “On the facts before us, the blue station spot could have been searched when it was stopped probable since there was cause to search fleeting target prob- and it was a for a search. The able cause factor still obtained at the station house mobility and so did the of the car unless the Fourth permits Amendment a warrantless of seizure anyone car and the denial of its use to until a war- rant is secured. In that event there is little to choose practical consequences in terms of an between im- mediate search without a warrant and the car’s im- mobilization until a warrant is obtained.” 399 US at 52. principle quoted set forth in Chambers, applicable

above, is to the instant As case. enun- ciated a there, warrantless search an automobile, made sometime after the arrest while the car was * * * “ police custody, legally provided made, probable that there was cause to have believed that the car contained articles that the officers were en- titled to seize.” Probable cause must have existed originally stopped at the time the car was or seized. eyewitness robbery, An temporary to the manager question, branch of the bank in testified that after the commission of the crime he observed go waiting the three felons to and a car and enter reported police. that he his observation to v. Carter a of member testimony Additionally, police department showed that radio Rapids Grand upon description based felons messages in- prompted investigation vehicle Buick. volving green is clear that criminal activity

It cases many in order are consummated with stolen automobiles In participants. identification prevent concerning view radio transmissions of the crimes Buick green investigations and the spotting by committed the defendants officers of Buick of Gilmore green custody a the the which was seen to Welford, McCully driven in question, on the afternoon of the crimes residence impounding shortly the seizure and subsequent identified as to vehicle, belonging thereafter of the rule that McCully, proper. was We the vehicle probable cause believe connected with contraband and contained was criminal activity. broadened case, supra, the Chambers has

While of motor rule search and seizure permitting authorizing as it is not to be construed vehicles a warrantless wait before performing three-day vehicle has been search, where the particularly law enforcement authorities possession here, period. If, throughout three-day vehicle, probable officers have cause to search made must be within a we hold that such search other- circumstances permit, reasonable time as the must be obtained. for the search wise, warrant admission of further find we However, as prejudicial so seized not so evidence evidence error, since such constitute reversible evidence properly-admitted cumulative to only from admis- resulted its miscarriage justice no 281; 4 Mich App Loncar People sion. v. App 28.1096); (Stat § § Ann 1954 Rev MCLA 769.26 529.1. GCR

Ill separate Did trial court’s to order failure prejudice rights trials the defendants¶ By granting separate statute, trials is judge. within the sound discretion of the trial (Stat § 28.1028). § MCLA 768.5 Ann 1954 Rev as in Where, case, instant the defendants are charged with the same crime evidence same implicate tois used be all the defendants in the joint crime, commission the denial of motions separate trials is not an abuse of discretion. People People 541; v. Newsome 3 Mich Cooper (1950), 514; 326 Mich Schram (1966), 378 Mich 145.

IY Did the trial court commit reversible error admitting testimony into evidence which tended to McCully show that had obtained a re- defendant previous in a volver unconnected theft¶ Young, grocery Witness Chatfield store owner, objection testify, was allowed to over of defense that counsel, owner, he was the under a concealed weapons permit, pistol,4 of .25 caliber automatic pistol introduced into evidence at that trial, disappeared had some months before December reported gun missing 1967, he that had to day disappearance. police on the of its A testimony called officerwas also as a witness and his gun pistol is .25 caliber found officers McCully’s apartment 2, 1967, pursuant December lawful to awith warrant. v. Carter Young reported the fact that verified witness missing from the revolver his store.

The defendants contend since the fact that, that gun McCully’s apart- was found in defendant undisputed, ment was mony tending it was error to allow testi- gun show

to that the had been stolen testimony owner, from its lawful and that such prejudicial immaterial and to them that its sole purpose jury they was to indicate to were guilty having gun. stolen the testimony Young

After the of Mr. presented, officer had been for a moved judge, denying mistrial. The trial the motion, part: stated in gun,

“It isn’t the identification it is the person. important identification of the That is here. Young’s

“Now, there was no made Mr. reference testimony about the fact that his store had been up. broken If into, he had been held that had been stop brought I true, that was out would have it upon police they investigating this case found but, gun Young. right, All out that this did sell is owned Young somebody day? Young let Did use it that purpose tracing somebody? it Not for gun purpose identifying but for the tracing people so when the Prosecutor offers purpose very I it think material. it is He very carefully kept I have, out and would if it had brought Young’s been up, out that Mr. store was held things including or broken into, or were stolen gun, your I this think Motion would be well taken. very carefully That eliminated. For that rea- prejudicial against anyone son there of these three no error respondents.” prosecutor’s questions carefully While the phrased specific question so toas exclude the pistol was whether “stolen”, we rule that it was error for the court to admit into evidence the testi mony here under consideration, because it ir charged. relevant to the crimes However, we deem testimony that the erroneous admission of this prejudicial to defendants and does not call for testimony reversal the convictions. The elicited imprisonment did not reveal con activity, nection with other criminal nor did it show other crimes defendants, committed such as occurred in the cases cited defendants. With having given due consideration been to the record in this we case, conclude verdicts would objectionable not have been different had the testi mony (Stat § been Ann excluded. MCLA 769.26 28.1096); § 529.1.) 1954 Bev GCR 1963,

Y instructing Did the trial court commit error jury regarding exercise their defendants’ right testify? not to jury part The trial court instructed follows: respondents

“None of the in this case have taken required they the witness stand. Neither principle pre- because this of law as the known sumption upon of innocence. The burden is prosecutor. They required are not to take the wit- standing alone, ness stand. And may fact, that fact by you not be considered as evidence of their guilt. they The fact that did not take the witness does, presumption stand not form a their either of guilt (Emphasis supplied.) or of their innocence.”

Defendants contend that of the words use standing permits implication “that fact alone” jury may that the consider failure defendants’ People v. Carter conjunction testify in with factors other the case therefore, instruction was, and that the erroneous prejudicial. and terminology court’s of such the trial use

While the instructions when considered inadvertent, clearly jury was a whole show that the instructed as by not to them as that this fact was forming be considered guilt presumption, a as to either the or defendants. rule that defendants’ innocence of We fully protected rights by as the instructions People (1968), App given. 718; Arntson 10 Mich People 205; 213 Mich v. Murnane Nankervis 330 Mich 17.

VI commit reversible error Did the trial court charge identifying portion jury its as having requested been defendants? jury part as The trial court instructed follows: a chain a case consists of the evidence

“When proven it and circumstances of well authenticated satisfactory convincing gives and is often more and stronger ground the defendant’s of assurance of guilt testimony uncon- of witnesses than the direct firmed circumstances. asked have means, “Now that the along give going I it instruction, this and am you prosecution, I noticed said line. The part prosecution, burden its authenticated, of every proof prove link in its each and must beyond In a reasonable doubt. chain of evidence like I chain of evidence words said the other it any link in the chain If one must be authenticated. proved beyond a has not been of circumstances proved they their then doubt have reasonable case.” (Emphasis supplied.) with the applicable failed to comply Defendants after following, state but did rule,6 conrt consider a verdict: had retired to jury law in the established contrary to “The court I request as, identified state of Michigan to do having the defendant this by asked give I link of the crime which the instruction each with not be identified.” should they feel is prejudicial instruction, claim as given, Defendants it suggested and because prejudicial, erroneous was it as disregard being that could they to the jury do the defendants. We advocacy by exercise in an of the of brevity view that, rule agree. We the by court, the given jury erroneous statement the en of instructions lengthy in the midst occurring of the fact 33 view pages, some compassing informed the jury properly that the instructions the error com case, law to the as to the applicable defendants, to was not prejudicial plained Fred W. People no occurred. injustice manifest 534.6 Thomas 519, 533, Mich 7 (1967), as follows: 516.2 states GCR give party may assign giving the or as error the failure to “No objects jury to instruction retires unless he thereto before the an consider objects verdict, stating specifically matter which he to objection. Opportunity shall be grounds his and the jury.” objection hearing given out to make of the Hawkins, also, Honigman Michigan & An- Court Rules See objection ed), pp 565, (2d that, notated 566 where it is stated where made, only timely there an instruction inherent to is not remains appellate plain court power of reverse error in to order injustice. manifest avoid improper requested “It to submit court instruc having from the Reetz v. tions as emanated other than court. Rigg 35; People (1963), Hunter 262. 370 Mich error, To determine whether has been we there reversible consider the surrounding facts the error committed. When involves court in it structions, charge. we consider the entire context of the right grant “We have no to reverse these convictions or new trial unless we are satisfied that there was such error as committed deprived carriage rights defendants substantial or resulted a mis- People justice. v. Pizzino 313 Mich CL (Stat Ann 28.1096).” 769.26 1954 Rev § § v. Carter

VII prosecutor Did the violate Garter’s defendant process right by failing to due to release to his alleged exculpatory attorney an statement made Broyles? defendant question part

The statement in is not a prosecution record and was not used in the trial of this case. However, defendant Carter as- serts that taken from statement, defendant Broyles day on the of the crime, indicated that Broyles McCully picked up the third (apparently man statement), unnamed in the “after getting assuming the car”; that, the third man was question Carter, there is a serious as whether he consented to the theft of the Osbeck car, the felony-murder charge; basis of the that some two and one-half months before motion for trial, dis- exculpatory argued closure of evidence before prosecutor court, trial result of which the agreed any to turn such evidence over defense counsel; and, that no such evidence was disclosed. alleging Counsel for Carter, exculpatory argues statement was as to his client, days did he not see the statement until several after the trial, commencement of at which time Broyles, prose- counsel for defendant to whom the cutor had furnished the statement trial had after begun, gave it to him. Counsel contends that Carter process was denied due of of law because this de- prevented lay, using in that he was from this state- prepare strategy ment to his trial and was further prevented discovering by from evidence means other of the statement. question prosecutor

There is no but that the acted good prosecutor faith. The turned the statement attorneys reasonably over one of the defense for each defendant would counsel have assumed we cannot However, deter- to the statement. access would have had effect the statement mine what upon presentation preparation of Carter’s timely disclosed to counsel for had it been defense defendant Carter. Maryland Brady upon relies counsel

Defense (83 1196, 1197; 10 83, 1194, S Ct 373 US good proposition 218) that the for the L Ed 2d prosecutor under immaterial of is faith Brady, imposed. the statement In there standards separately accomplice, tried, was of an who was by prosecution brought notice not to defendant’s and sen- tried, convicted, he had been until after facts affirmed. While and his conviction tenced, present Brady stronger in the than those remanding, principle announced case applicable: appears Supreme pp be Court at prose- suppression now hold that the “We upon to an accused of favorable cution evidence process request the evidence is where due violates irrespec- guilt punishment, or to either to material prosecution. good or faith of faith bad tive victed walls of accused “Society the administration but when treated wins Department criminal trials not unfairly. only # ^[*] justice when the Justice ^[*] An are inscription suffers states the fair; guilty our when are con- system propo- any candidly domain: ‘The United for the federal sition justice point is done its whenever wins its States prosecution withholds A in the courts.’ citizens if made which, of an accused on demand evidence exculpate reduce him or tend available, would heavily shape helps penalty trial that bears prosecutor in the That casts on the defendant. role comport proceeding that does of a architect an * * * justice, .” with standards v. Carter by Bronson, J. rule that this cause must be We remanded as to evidentiary hearing Carter for an defendant question determine whether the statement proper preparation by to a essential counsel of case. as a result If, Carter’s hear- ing, it is determined that defendant Carter was prejudiced by part prosecutor a failure on the timely proffer counsel, the statement to Carter’s a new him, otherwise, trial shall be as to had conviction is affirmed. questions by

The other raised defendants are without merit and need not be discussed. Broyles

Affirmed McCully. as to defendants pro- Remanded as to defendant Carter, for further ceedings opinion. consistent with this J.,

Munro, concurred: (dissenting). The defendants were Bronson, by jury convicted in a consolidated trial robbery1 kidnapping. murder in the of a course mandatory imprisonment Sentences of life subsequently imposed.

I. Facts alleged The crimes to have been committed place Rapids the defendants took in Grand De- day cember Osbeck, 1967. On that one Emile 67-year-old victim, ate lunch at his home Grand Rapids. departed Osbeck from his home car at approximately p.m. 12:30 and was next observed paint wallpaper shop purchased a at where he gallons paint. carrying several Mr. Osbeck, paint pro- purchased, the store, he left parking ceeding lot, the direction of the. murder). CL § 750.316 (Stat Ann 1954 Rev § 28.548) (felony- J. by Dissent Bronson, time last p.m. the approximately This was 12:50 seen, alive. he was p.m. approximately 1:15 Osbeck’s automobile At by alleged the in used to have been robbery perpetration armed of a Grand of an the Although Rapids defendants were not the bank. robbery charged nor with murder bank the with robbery, the bank in the course committed tending proofs to show of trial consisted at evidence robbery. in the bank involvement defendants’ the establishing in the involvement defendants’ In fact, robbery fled in Osbeck’s thieves the which bank prosecution’s imperative a case, case to the car was entirely upon evidence. circumstantial based robbery, ap- at bank minutes after the A few p.m., automobile was proximately Osbeck 1:17 parked from the scene of the distance short seen emerge robbery. men three A witness observed bank open and flee on trunk, the car automobile, from the subse- was unable to witness, however, The foot. identify any occu- quently as the of the defendants although pants she did state automobile, something on one had “one had white Rapids police something dis- The red on”. Grand approximately parked automobile covered body p.m. Emile Osbeck and found the 1:20 the trunk. paint in the front seat located

A container of apparently overturned had automobile been stepped paint occu- had been the wet white footprints leading pants. The followed away paint tracked from the automobile—some light snow been automobile and there had from the foot- could be discerned. in prints the tracks which building apartment to an led apartment separate Inside units. of three consisted spot building apartment observed the officers Cartee, by Bronson, subsequently paint. As was dis- fresh white McCully wife had defendant his been covered, apartment; living first floor second floor in the Broyles. apartment rented defendant Upon entering apartment building, the officers Cully’s apart- knocked on the door of Me greeted by McCully. ment and were Mrs. Mrs. McCully permitted apart- the officers to search the suspects, finding ment for but inside, no one proceeded upstairs. Directly officers front leading Broyles’ apartment, door to defendant spot “a officers noticed the floor that looked like standing water if someone been there with Having wet shoes”. failed to receive an answer, cautiously apartment, the officers tinuing entered the con- pursuit fleeing suspects. their Al- though apartment subsequently the was found to be empty, the officers, warrant, without seized following pair items: of shoes smeared with white paint, a hole in red-hooded sweatshirt with a paper containing sleeve, a brown in bills, sack $943 the serial numbers of matched which those like denomination stolen from the a .22 caliber bank, revolver, German in bills from $1,740 and stolen the bank.

These trial, items were admitted into evidence at notwithstanding suppress objections and motions to tendered the defendants. A more detailed dis- cussion well seized, items as the circum- appear surrounding will in a stances the search, part subsequent opinion. of this day, following On the December 2, 1967, apartment building officers returned to the thoroughly a search with warrant and searched apartment warrant, units. Pursuant this following items were seized from defendant McCully’s apartment: appears to have $1,500, by Bronson, pistol, a .25 caliber and bank, from the stolen been intro- These items were ammunition. .22 caliber at trial. duced into evidence MeCully Broyles ap- and defendant Defendant Rapids peared Hall Grand of Justice at p.m. approximately 1, 2:20 on December 1967, prior being on a conviction. After be sentenced custody and while Grand sentenced Rapids police, were arrested and both defendants charged the murder of Emile Osbeck. De- with although arrested on December 14, fendant Carter, charged for an unrelated was with the 1967, crime, January A instant Mr. 11,1968. Welford, offense possession McCully’s who was custody taken into later automobile, Mc- afternoon December 1967. Defendant Cully’s parked by automobile, which been Mr. pool im- hall, Welford outside a pounded by was seized and at that time. On December days 1967,three after the automobile seized and impounded, police, obtaining without a warrant, McCully’s searched defendant automobile dis- cartridges .22 .25 covered several caliber glove compartment. These items likewise despite timely objections into introduced evidence suppress. motions During prosecutor’s theory the trial the was shortly by Osbeck had the been accosted defendants departing paint after from the store. The defend- get ants forced Osbeck to into the trunk of his car, proceeded and then to utilize Osbeck’s perpetration robbery. automobile in their of the bank Mr. once Osbeck, inside the a heart trunk, suffered brought by attack on fear and excitement.2 Since 2 doctors, Three including the autopsy surgeon, testified trial that Osbeck enlarged by brought an heart about arteriosclerosis. However, it was response hypothetical their conclusion in ques- v. Carter by Bronson, fatal attack was and since heart the death during perpetration occurred theft of robbery, automobile:,and thus a his under CL 1948, (Stat 28.548), § § Ann 1954Rev that incident 750.316 first-degree murder.3 None of constituted the de- at trial. fendants testified been raised A total of issues have appeal, I but do not deem it neces- defendants sary proceeding, of Before I discuss all them. point out that the nature of this crime, should person’s an as the termination of innocent life, well performance my duty easy. not made the of have particular of a as distasteful as outcome Yet, may may or the which be, evoke, case judge criticism it steadfastly

must adhere to and observe the safeguards liberty principles and of human enumer- of United For, ated the Constitution States. constitutionally-guar- conflict arises between where yield. rights expediency, latter must anteed Having prefatorial I turn comments, made these legal I make reversal to the issues conclude obligatory. instant convictions

II. it admit into evidence all Whether was error to police, warrant, the items seized without a pursuit searching apartments while defendants’ suspected felonsf necessarily search is violative A warrantless United States Cons the Fourth Amendment of the exceptions recognized to the titution.4 Certain fatal incident emotional trauma of the caused tions seizure. rule in most situations Code, 4 However, Por see Comment, Wayne recent discussion L importance Rev Homicide cannot be pertaining Under overemphasized. (1968). obtaining Michigan Michigan’s a valid search warrant Revised Supreme felony-murder Criminal Court, 83 28 112 by Bronson, J. Dissent established, been based have requirement warrant situations exempted in those that the upon premise In unreasonable. itself is requirement the warrant do of situation not the words, exigencies other search unreasonable.5 warrantless make the (1968), McDonald 13 in v. People Judge Levin, stated: 226, 232, 233, Mich App or a lawful arrest, to “Searches, incident follow- the com- used in for instruments ing pursuit hot a and means fruits, contraband crime, its of mission But be reasonable. held to been have escape, incident to an every mean not that does justified(Em- hot pursuit a following or arrest added.) phasis not was incident case the search the instant

In was not substan- arrest,6 because the search to an (89 2034, 2039, 752, Ct US 761 S 395 in Chimel California recently 693), purpose of the 692, reiterated the 685, 23 L Ed 2d requirement: and the warrant Fourth Amendment ** * “ large part in to a reaction The Amendment searches that had so alienated general warrants and warrantless In helped independence. speed the movement and had colonists therefore, ‘no Amendment, requirement that the scheme of the cause,’ part. issue, upon probable plays a crucial but Warrants shall (1948), 335 put in McDonald v. United States US Court it As the 153): (93 191 L Ed 451, 69 S Ct “ dealing presence of a search with formalities. The ‘We are grave emergency, high Absent warrant serves function. some interposed magistrate has between the Amendment Eourth nor police. This was done not criminals citizen and to shield illegal It the home haven for activities. was done to make so that an a safe objective might weigh the that need invade mind to right privacy privacy enforce order the law. to precious to entrust discretion those whose deemed too ** * job criminals. is the of crime detection arrest of pass requires magistrate And so of cannot absence Constitution on desires privacy they We before violate the home. requirement be that true constitutional excuse the of a showing search warrant without a those who seek exemption exigencies from the constitutional mandate imperative.’ Id., made course 455-456.” situation 5 E.g., Terry (88 Ohio 1 S Ct L Ed 2d US 889). The two arrested December fact part town, custody, ap- arrested a different while proximately one hour after the search. instant “If a search of a v. Carter Bronson, contemporaneous tially with the arrest nor confined vicinity to the immediate the arrest. See Stoner (1964), (84 v. 376 483 US S Ct 11 889, California 856); Agnello L (1925), 2dEd v. United States 269 (46 145); US 20 L 4, S Ct 70 Ed Mosco v. United (CA 1962), States 301 9, F2d 187. The search was completely unrelated to arrest, both as to time place. (1964), See Preston v. United States (84 777); 364 376 US 881, S Ct 11 L Ed 2d Stoner supra. California, v.

The bring facts of the case do, instant however, initially, the warrantless search, least within the scope pursuit” exception. “hot so-called Maryland Hayden Penitentiary Warden, (1967), v. (87 782).7 387 294 US L S Ct 18 Ed 1642, 2d That pursuit” is, the search in was made the course of “hot fleeing pursuing suspected felons. While apartment, police, searching felons inside an from room to room or in other areas where the suspects reasonably expected could been have to he hiding, right objects have a to seize certain plain fall within their view. Harris v. United States (1968), (88 390 1067); US 234 19 L 992, S Ct Ed 2d People Eddington (1970), App see v. 23 Mich right, good There also if exists the suspected present, faith believe the felons to he protective weapons prevent make a search for “gravely endangering their or lives the lives of Maryland Penitentiary Hayden, Warden, others.” v.

supra. cently reaffirmed, by house is to be place In States Vale v. son v. United (Emphasis ^[7] precedent Vale, inside the Louisiana “hot and citations for Court pursuit” States upheld ^[386] the “hot house, (1970), US cited, means as incident exception ^[18] * * * omitted.) pursuit” in addition to ^[399] (87 US S Ct dictum, to the warrant US 10 not somewhere outside exception. ^[30] to an (90 arrest, Hayden, Chapman (68 S Ct Vale v. L S 1969, Ed 2d Ct that arrest must requirement Louisiana, Ed 2d 26 L 705), L * * * Ed was re- United supra. John- 409). 436), take .” 28 by Bkonson, pursuit” exception not, does however, The “hot warrantless search. provide an unlimited Hayden, supra; Maryland Penitentiary v. Warden, supra. For the warrantless McDonald, pursuit legal situation, in the instant be search to prerequisite the pursued suspects officers is that a fundamental reasonably have believed that apartment.8 present the officers Once suspects were of the fact that aware became permitted apartment, exigency which longer existed.9 no the warrantless objects is whether the crucial issue Therefore, during dur- occurred warrantless search seized this suspected ing pursuit while felons and reasonably the felons be believed the officers present. and seizure of I that the search conclude officers dis- the some of the items occurred after present suspected felons were covered that the illegal. part Thus, search was and, therefore, the illegal of this it was error to admit the fruits search into evidence. warrant- I conclude that the seized,

Of the items following produced and seizure which less search pair with shoes smeared items was reasonable: a paint, in with a hole white sweatshirt red-hooded 8 Maryland Penitentiary Hayden Warden, In 387 US 1642, 1646; 782, 787), (87 S 18 L Ed 2d the Court stated: Ct must, therefore, least, permissible scope be “The at the search reasonably necessary dangers may prevent as broad be suspect large may (Emphasis escape.” at in the house or resist added.) Louisiana, supra, See Vale v. note search, legal inception, may A to tra- warrantless at its be seen Terry legality. by verse the in boundaries As stated the Court (88 1, 18, 1868, 1878; v. Ohio 20 L Ed 2d US S Ct 889, 903, 904): inception may search which reasonable violate “[A] its the Fourth Amendment virtue intolerable intensity in of its * * * scope scope . 'strictly the search be tied must justified by’ to and the circumstances which rendered its initiation permissible.” v. Carter by Bronson, paper bag containing and brown sleeve,10 $943 police items were seized These in in bills. pursuit fleeing of their the course felons. were discovered as the The items officers moved reasonably searching places room to room from suspected might hiding. felons be Also, where the discovered while the reason- the items were present apart- ably in the felons to be believed ment. search and the warrantless seizure which

However, produced .22 caliber revolver and the $1,740 conducted after stolen bills was concluded suspected present; that necessity felons were not protective stage

for a search at that ceased. preliminary investigating

At the examination the apart- officer testified as to after the what occurred suspected ment had been for the searched felons: “I for the Police then called Identification Bureau a crime team Crime Lab for search to come to the apartment. waited scene We for some period they working of time as on the car at parking Karpowicz lot. Officers and DeBok [apartment], they pro- arrived at the scene [apartment]. ceeded to check crime scene We tagged pull-over jumper. the shoes and the red, I money tagged. already Karpowicz had the Officer pistol I and located a .22 caliber Rohm the steel cabinet the—at the foot of the bed the bedroom apartment, Karpowicz in the and Officer was stand- ing. standing right alongside I was him and up lifted the seat of an overstuffed chair in the living which would be room, the center room of the apartment; three-room and under the seat was package money found another [$1,740].” description This clothing sweatshirt fit the officers fleeing worn one of the bank robbers. 28 by Bronson, investigating officer testified at trial

Likewise, respect the seizure of the .22 with follows in bills. the $1,740 caliber and revolver examination): (Direct thing you next recall

“Q. is the Now what you observed? sweatshirt and shoes and

“A. had the We money I called for the identification bureau so some at time scene and Officers to come to the Karpowicz DeBok arrived the scene we apartment in the metal cabinet over, checked the apartment, upstairs of the south in the bedroom apartment found a we revolver. south type it? “Q. “A. A of revolver was What I Rohm. believe a make, German you “Q. Do the caliber of it? know I “A. .22 believe.

# S» # Inspector “Q. next then Pierce? What DeBok lifted the “A. Officer cushion the chair you in the middle room have the kitchen and then you this room and a bedroom. He have middle pack- the cushion on the chair lifted and there was a age unwrapped packed [sic] chair we it money. contained some apartment you talking

“The Court: What are about? upper apartment, Prospect.

“A. The south you “The Court: Is that the one refer to as the apartment? Broyles

“A. That is correct. you “Q. said You he lifted cushion saw? package “A. The was under the cushion. you “Q. And found what under the cushion? “A. About $1,700. Money?

“Q.

“A. sir. Yes, 117 v. Carter by Bronson, Dissent J. wrapped anything? “Q. it Was A“A. cloth.” M *41. TVTV TVTV

(Cross examination): you already “Q. Is this after had decided there any people Broyles apartment? not particular “A. This yes, find was afterwards, sir. you lifting up “Q. In other words weren’t anybody cushion to see if there was under the cushion?

“A. sir. No, So that search that you “Q. describing are now you complete was done after had made a determina- you people gone tion that the into the house and looking for, were not in there? fact “A. Yes, sir. you gotten

“Q. And still hadn’t the one? “A. That is correct. any “Q. point There wasn’t reason at this that

you applied couldn’t have warrant the normal course was there? (No answer.)

“A. “Q. You you had the house surrounded didn’t Inspector?

“A. sir.” Yes,

This extensive warrantless search, conducted suspected after the officers were satisfied longer present, felons were no cannot be accom- plished pretense pursuit”. under the of “hot The testimony discloses that several officers were they apartment on the scene and had the build- ing exigencies surrounded. of the situation requirement were not such to make the warrant unreasonable. See McDonald v. United States (1948), (69 153); 335 US 451 93 L 191, S Ct Ed Terry (88 v. Ohio 392 1 Ct 20 US S 889). generally, L Ed 2d See, Chimel v. California (89 685); 395 US 752 L S Ct 2d Ed by Bkonson, (90 (1970), 399 S Ct 1969, US Louisiana Vale v. 409). should seized L The items thus 26 Ed 2d Mapp v. Ohio into evidence. admitted have been (81 L (1961), 6 Ed 2d 1684, 1081, 643 CtS 367 US 933). 84 ALR2d

III. McCully’s the search Whether of defendant days three warrant, automobile, without after McGully the car tahen into arrested and had been search¶ custody by an constituted unlawful result this warrantless as the of The items seized ammunition. and .25 caliber were .22 compartment glove found items were objections suppress Although motions car. timely, trial court admitted trial were relying Harris United v. evidence, items into (88 (1968), 19 L Ed Ct 992, 234 390 US S States (1967), Cooper 1067), 386 v. US 2d California 2d 730). (87 L relied Ed Defendant 788, 17 58 S Ct (1964), upon principally United States Preston v. 777). (84 2d 11 L Ed 881, 364 Ct 376 US S objects distinguished since can Harris be “plain within in the instant case were not seized suggested has been officers. It view” (89 (1969), S Ct 395 US 752 Chimel v. California by recognized although 685), 23 L Ed 2d 2034, rule that the retroactive,11 instructs this Court as controlling Cooper, is the Preston, before decided examination recent the most However, law.12 People 194; Herrera 11 People App v. (1970), 23 Mich Sims v. 19 (1969), Mich 804, 806, court (CA 6, 1969), 415 F2d In Perini Colosimo v. stated: persons, suspected the automo- person, of crime and “With the or custody, precipitous action be bile to warrantless search searched both justified. Preston longer It is true that is no arrest, away from point the scene the vehicle was searched at a place while here the remained at where vehicle v. Carter by Bronson, Supreme this issue the United States Court in Maroney (1970), (90 Chambers v. 399 US 42 S Ct 419), persuades 26 L Ed 2d this writer that interpretation given a new is to be to the Fourth respect Amendment with searches of automobiles. purposes That “for the is, the Fourth Amendment there is a constitutional difference between houses Id. at 52. cars.”

Under Chambers, a warrantless search of an may legally automobile be made as incident to a probable lawful arrest or if “there cause to be- lieve car contains articles that the officers are entitled to seize.” Id. at 48. See Carroll (45 United States 267 US S Ct 543); People Danny L Ed Williams Mich 549.

The rule enunciated the Court in Preston re- authority proposition mains for the that a warrant- police less search an automobile “made at the * * * station some after time the arrest cannot justified be as a search incident to an arrest” be- thought cause “the reasons which have been suffi- justify cient to warrantless searches carried out longer in connection with an arrest no obtain when safely custody the accused is at the station house.” Maroney, supra, (Emphasis Chambers v. at 47. added.) though

However, even search a and seizure under justified such circumstances cannot be a search incident ato lawful arrest, search warrantless of the automobile, conducted at the station justified some time after the arrest, can be on the Chimel, however, arrested. persuades factual us that such dis- controlling tinction is importance. We believe that Chimel Preston, prior instructs us that involved, the rule of to trial decided here Sims, is the law that controls this case.” See supra. 28 Bronson, probable cause at tbe time of tbe existence basis stopped: originally automobile was purposes, we see no difference constitutional “For holding seizing and a car hand on the one between before probable presenting cause issue a carrying magistrate an other hand out on the prob- a warrant. Given without search immediate course reasonable either is search, cause to able Amendment. under the Fourth wagon the blue station us, facts before “On the spot on the when it was been searched could have probable stopped cause search since there was target fleeting a The search. and it was probable house and factor still obtained at station cause mobility so of the car unless did the permits a warrantless seizure Amendment Fourth of the car anyone until a and the denial of its use there little to In that event warrant is secured. consequences practical between terms of choose in and the a warrant an immediate search without is obtained. warrant immobilization until car’s ^{[*] [*] [*]} "13

I after careful examination conclude, however, originally who that the officer seized record, probable McCully’s lacked automobile and, at that time, search the automobile cause to subsequent of the automobile therefore, the illegal. station was factually to that instant case is dissimilar probable police had Chambers. In Chambers upon based information obtained believe, cause to had committed witnesses, from particular felony fleeing car. The in and were a description police its car well as had proximity occupants. be- In due to addition, 1981; (1970), ^[13] Chambers 26 L Ed 2d 383 Mich v. 419, Maroney 549; People 428). See, generally, (1970), Zeigler 399 US (I960), People 42, ^{[52] [358]} v. Danny (90 Mich 355. S Ct Williams 1975, 121 People v. Carter by Bronson, pursuit crime tween the commission and the escaping felons, reasonable grounds fleeing to believe that felons in the possession guns in automobile were and fruits of the crime. McCully’s

In the case, instant automo parked pool bile was discovered outside hall p.m., approximately around 2:40 an hour and a discovery half after the of the Osbeck automobile body. occupants which contained Mr. Osbeck’s No parked were observed automobile. The offi McCully’s cers had no information that defendant automobile was used either crime instant in Mr. resulted Mc- Osbeck’s death nor that Cully’s any automobile was connected manner robbery. with the bank In was Mr. Osbeck’s fact, it being automobile alone which was described as used fleeing bank robbers. The had no valid McCully’s reason to believe that defendant automo instrumentality bile was the crime. justify record in the instant case insufficient probable the conclusion that cause to search defend McCully’s ant automobile it existed at time was Dyke Taylor Implement Manufacturing seized. See (1968), (88 o. 216 Ct 20 L Ed US S C 538). 2d McCully’s Since the search of defendant automo- place bile too remote time and have been noting arrest,14 incident to the and further that the probable officers lacked cause to the automo- bile at the time it was conclude that seized, I impounded warrantless search of the automobile illegal illegally and that items obtained Mapp should not have been admitted into evidence. L Ed Preston 2d 777); v. United States v. Dombrowski US 10 Mich (84 S Ct 83 28 122 by Bronson, J. Dissent (81 6 L 1684, 643 S Ct Ed Ohio US 933). ALR2d 1081, 2d

IV. into evidence items the admission Whether of during illegal constituted searches “harm- seised error”? less parts

Having searches, or concluded that of Fourth in made violation thereof, were Constitution, this of United Amendment States if of tainted evi- the use must determine Court harmless error. constituted trial dence establishing rests with error of harmless burden prosecution that of review is and the standard Supreme States Court United established Chapman 18, 23, 386 US v. California 711): (87 705, 710, 2d L Ed 827, 828; 17 824, S Ct emphasizes ‘a rule constitutional “The California miscarriage justice,’ courts California but the of emphasis, extent this to some have neutralized upon overemphasis, view of perhaps court’s approach prefer ‘overwhelming evidence.’ We deciding error harmless what was this Court Fahy [1963], Connecticut in our recent case L Ed 2d (84 230; Ct 375 US 85-87 S question there 173). is whether There said: ‘The we possibility com- that the evidence reasonable is a plained might to the conviction.’ contributed have Although prior that there indicated cases have our rights a fair basic to so constitutional are some treated can never be that their infraction trial Fahy belies itself error, this statement harmless the At the any trial errors which violate that all belief automatically call for reversal. Constitution same statute, harmless the federal harmless-error like time, however, emphasises to treat as an intention it sub- constitutional errors those ‘affect admitting party. rights’ An error stantial v. Carter by Bronson, plainly possibly evidence relevant influenced litigant adversely jury Fahy, cannot, to a u/nder * n * * as harmless. We, therefore, be conceived of meaning Fahy more than adhere to the onr do no as we now hold, do, case when we before harmless, constitutional error can be held federal able declare a that it court must be to belief (Em- beyond reasonable doubt.” was harmless phasis added.) determining he The standard to utilized Chapman, of harmless established error, issue recently Harrington reaffirmed in v. California (1969), (89 1726, 1728, 1729; Ct 250, US S 288): 23 L 2dEd depart Chapman; do not from

“We nor do we dilute it inference. We reaffirm it. We do not suggest bearing ingredi- that, on evidence all the if tendered, ents evidence, the crime is the use cumulative though tainted, is harmless error. Our based decision is on the evidence in this record. Harrington against The case not woven from (Emphasis added.) circumstantial evidence.” entirely Since instant case was woven from strong evidence, circumstantial I albeit am web, beyond not convinced a reasonable doubt that the constitutional error to was harmless defendants. Chapman supra; Harrington California, v. Cal- v. supra; People (1969), App ifornia, v. Teal 20 Mich People (1970), App v. Mason 22 Mich 595. 176; Assignments oe Error

Other For the I reasons, above-mentioned would reverse for a trial. convictions and remand the cause new my In I view of will com- issues, decision these briefly upon only remaining assignments ment of error. 28 App by Bsonson,

V. separate to order the trial court’s Whether failure rights prejudiced trials defendantsf separate granting By aof trial statute, judge. of the trial CL discretion the sound within (Stat 28.1028). § § Where, Ann 1954Bev 768.5 charged defendants are case, the as in the instant is to be same evidence crime and the the same with joint implicate in the all the defendants used commission a motion crime, the denial of separate an See abuse discretion. trials is People (1966), People 145; 378 Mich v. Schram Cooper Newsome 514; 326 Mich 3 Mich VI. prosecutor violated Whether the process failing right release due Carter’s alleged exculpatory attorney an state- to Carter’s Broylesf by ment made defendant Approximately before two and one-half months exculpatory evi- disclosure trial, motion argued prosecutor The before the court. dence was by exculpatory agreed made statements to furnish attorneys representing any the defendants to the prior to trial, the attor- However, the defendants. any apprised neys of the existence were not exculpatory statements. began, prosecutor

Shortly dis after trial Broyles’ Broyles’ statement closed defendant attorney, attorney. Carter’s However, exculpat alleges now that the statement who ory15 see the statement as to his did not client, days of the until after the commencement several question introduced into evidence statement The part appeal. is not of the trial and record at v. Carter by Bronson, Broyles counsel for defendant which time trial, the statement. There is no him with furnished prosecutor question my acted mind but that the prosecutor turned good the statement faith. The attorneys reasonably of the defense to one over for each defendant would have counsel assumed that statement. to the access prosecutor good is not faith of the

However, the Maryland Brady Court, sufficient. (83 1197; L10 Ed 2d 1196, Ct 1194, US S 218), follows: held as suppression by prose- now hold that “We upon to an accused of evidence favorable cution request process the evidence due where violates irrespec- guilt punishment, or to material either prosecu- good faith of faith or bad tive tion.” I trial, I remand for a new would this case Since request require prosecutor, upon would also compelled by each to disclose to counsel, defense be attorney any exculpatory one made statements Maryland, supra. Brady codefendants. VII. by admitting trial into Whether court erred testimony de- evidence to show that tended pre- McGully in a revolver obtained a fendant vious unconnected theft? judge,

During the trial trial, the course of the objection per- notwithstanding counsel, defense Young, testify mitted Chatfield witness, by he discovered was the owner of the revolver McCully’s apartment. Mr. in defendant Young “dis- had testified revolver further that the appeared” before from his store a few months police aas also called instant A officer was crime. 28 Mich by Bronson, testimony Young that Mr. and Ms verified witness missing reported from had his revolver store. objected testimony The defendants to the of both police Young it officer that on basis was prejudicial It to their clients. immaterial and is argued appeal such testi- on that the sole basis for mony the inference that the defend- was to leave had stolen the revolver. ants, them, or at least one Young testimony offi After the presented, for a cer had defendants moved been judge reason motion, mistrial. The trial ing denied kept carefully prosecutor out the that the up, Young’s or fact that Mr. was held broken “store * * * including gun things . into or this were stolen very carefully That While was eliminated.” prosecutor’s questions carefully phrased so as specific question re of whether the exclude the clear. volver inference was “stolen”, People Greenway (1962), 547, 551, In Michigan Supreme quoting from Court, Harry stated: Fleish 321 Mich “ disposition depart no ‘There is from the rule general is as to a defendant who does testify own behalf, his evidence of former except convictions or is not admissible offenses cases wherein such evidence material and relevant being (Emphasis added.) to the issue tried.’” charged In the instant case the are with robbery murder in the course an automobile judge’s and, the trial words, own “established undisputed” proved evidence existed which McCully’s the revolver was in found apartment.16 testimony of the witness and the relating officer to the revolver not rele- 16The revolver at issue is the .25 caliber revolver in de found McCully’s apartment 2, 1967, fendant pursuant December lawful with a warrant. 127 People v. Carter by Bronson, possession revolver, which Defendant’s vant. unchallenged, with the inference is tainted thus testimony to show tends prior The offense. of a the theft committed had either that property. stolen had received or of the revolver setting the introduction case of this Under prejudi- testimony objected-to was erroneous Lundberg (1961), 596; Mich People v. cial. People People supra; Matthews Greenway, v. v. (1958), Boggs App State 48; Mich (106 263). So 2d Ala 358

VIII. instructing erred in the trial court Whether regarding jury their exercise the defendants’ right testify? not jury as follows: trial court instructed respondents in this case have taken “None of the they required to Neither were the witness stand. because of this pre- principle as the of law known upon sumption innocence. The burden required prosecutor. They to take wit- are not standing alone, that fact, And the ness stand. fact by you of their may as evidence considered be they guilt. take the witness did not The fact that presumption, of their either not form a stand does (Emphasis added.) guilt innocence.” or of their argue words “that the use of the that Defendants implication permits standing clear alone” fact conjunc- jury may factor that consider that the guilt. proofs of defendants’ tion evidence with the must Having be convictions determined grounds, neces- deem it I do not on other reversed sary this instruction issue of whether reach the merely the established reiterate I erroneous. was principle testify declination a defendant’s 28 any presumption at his own trial does not create against (Stat § Ann the defendant. MCLA 600.2159 27A.2159). § 1962 Rev applied

A strict standard is to be this area. Mitchell 164 Mich 583. Instruc- jury tions allow the to consider, either implication or that a inference, defendant’s failure any bearing upon to take the stand has guilt adverse his People must be avoided. See v. Ncmkervis (1951), People 330 Mich 17; Murnane 205; v. Arntson 10 Mich questions

Other raised defendants are without merit and need not be considered.

For the reasons I stated, would reverse and re- mand as to all three defendants.

GAZDECKI v. CARGILL — Ownership — — Automoblies Transfer Title Automobile — — Dealer Purchaser Statutes. Legal pass title of an automobile does not from a licensed auto- prospective purchaser mobile dealer where the dealer deposit only has received automobile and delivered the automobile with plates license dealer attached with no because, written by statute, evidence pur- sale chaser sign applications vehicle shall and other necessary papers to enable dealer transfer to secure the (MCLA 257.217). title §

Reference Points Headnote 2d, 7 Am Jur Highway Automobiles and Traffic 42-46. §§

Case Details

Case Name: People v. Carter

Court Name: Michigan Court of Appeals

Date Published: Feb 9, 1971

Citation: 184 N.W.2d 373

Docket Number: Docket 6,801, 6,949, 7,293

Court Abbreviation: Mich. Ct. App.